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A    TREATISE 


ON    THE 


Law  of  Boundaries  and  Fences 


INCLUDING   THE 


Rights  of  Property  on  the  Sea-Shore  and  in  the 
Lands  of  Public  Rivers  and  other  Streams, 


AND  THBl 


LAW  OF  WINDOW  LIGHTS. 


By    ransom    H.    TYLER, 

Covnaclor-at-Law, 
Author  of  "American  Ecclesiastical  Law,"  "  Commentaries  on  the  Law 
of  Infancy  and  Coverture,"  "A  Treatise  on  the  Remedy  by  Eject- 
ment, and  the  Law  of  Adverse  Enjoyment,"   "A  Treatise 
on  the  Law  of  Usury,  Pawns  or  Pledges,  and 
Maritime  Loans,"  etc.,  etc. 


ALBANY: 
\^iil.l.iam:    GrOXJiaiD    &c    so  IT. 

1876.  ^ 


T 


Entered  according  to  act  of  Congress,  in  the  year  eigiiteen  liundred  and  seventy -fonr,  by 

WILLIAM  GOULD  &  SON, 

in  the  office  of  the  Librarian  oi  Congress,  at  Washington. 


PREFACE. 


The  2Towing  importance  of  the  subjects  treated  in  tlie 
following  pages  makes  it  probable,  in  the  judgment  of  the 
writer,  that  a  work  devoted  especially  to  their  consideration 
will  be  found  convenient  and  useful,  and  may  meet  with  favor 
fi-om  the  legal  profession.  It  has  been  often  and  truly  observed, 
that  a  large  proportion  of  the  litigation  in  this  country  respect- 
ing the  title  to  real  property  arises  in  cases  of  disputed  bound- 
aries ;  and  yet,  hitherto,  the  law  by  which  such  questions  are 
governed  has  remained  scattered  through  innumerable  volumes, 
the  most  of  which  are  inaccessible  to  the  major  part  of  the  pro- 
fession. It  is  obvious,  therefore,  that  a  work  in  which  the  law 
upon  the  subject  is  all  brought  together,  and  within  reasonable 
limits,  must  be  desirable  to  the  practitioner,  and  be  the  means 
of  much  saving  of  time  and  expense. 

So,  also,  litigation  and  dispute  are  constantly  arising  in 
respect  to  the  maintenance  of  fences  in  the  country,  and, 
from  an  excusable  want  of  familiarity  with  the  law  upon 
the  subject,  the  most  capable  lawyers  find  it  necessary  in  most 
cases,  when  applied  to,  to  consult  statutes  and  digests  to  a 
tedious  degree,  in  order  to  be  able  to  give  the  appropriate 
advice.  The  same  remark,  therefore,  may  be  made  in  respect 
to  this  as  to  the  subject  of  boundaries :  a  book  in  Avhicli  the 
law  relating  to  fences  is  concisely  exhibited  cannot  fiiil  to  be 
convenient  and  acceptable  to  the  practitioner.  And,  finally,  the 
rules  and  regulations  relating  to  the  right  to  window  lights,  oi' 
the  right  to  light  and  air,  so  important  )^  the  old  world,  arc 


h»rf/fi  iOv/r»r^,-f» 


4  PliEFA  CE. 

l)econ]inp;  of  no  inconsiderable  interest  on  tins  side  of  the  Atlan- 
tic, and  this  interest  mnst  necessarily  increase  with  the  growth 
and  age  of  the  country.  Even  at  the  present,  grave  questions, 
involving  the  right  to  light  and  air,  are  often  presented  to  the 
courts  for  adjudication,  making  it  desirable  that  the  law  upon 
the  subject  should  be  ready  of  access,  and  reasonably  well 
understood.  Notwithstanding  their  importance,  no  American 
Work  lias  been  heretofore  produced  in  which  any  of  these 
subjects  has  been  specially  treated,  and  the  object  of  the  fol- 
lowing pages  is  to  supply  this  supposed  want.  There  have 
been  published  two  or  three  very  small  English  books  upon 
the  subject,  but  they  are  so  tilled  with  the  consideration  of 
the  local  policy  of  Great  Britain  that  they  are  really  of  little 
or  no  value  to  the  American  practitioner.  What  I  have  found 
in  those  works,  however,  which  I  deemed  of  any  service,  I 
have  freely  extracted  and  incorporated  into  my  own  work ; 
endeavoring  to  give,  in  all  cases,  the  proper  credit.  But  what 
is  much  more  important,  I  have  made  it  a  point  to  consult  all 
the  American  statutes  and  judicial  decisions  upon  the  subjects 
treated,  and  especially  those  of  the  most  recent  date,  and  then 
state  the  law,  as  it  is  settled,  in  plain,  clear  and  concise  lan- 
guage, so  that  the  same  may  be  com])rehended  without  refer- 
ence to  other  authority.  It  has  been  my  aim  to  produce  a 
book  which  shall  not  only  be  convenient,  but  which  may  be 
depended  upon  ;  and,  to  this  end,  I  have  spared  neither  labor 
nor  ])ain8  in  searching  for  the  latest  authorities,  and  have 
endeavored  to  extract  the  doctrine  of  the  cases  with  scrupu- 
lous care.  I  believe  that  my  labors  will  be  appreciated  by 
the  courts  and  the  profession,  to  whom  they  are  confidently 
committed. 
May,  1874. 


TABLE  OF  CONTENTS. 


PART    I. 
OF     THE     LAW     OF     BOUNDARIES 


CHAPTER  I. 


Definition  of  the  term  Boundary— Preliminary  observations  in  respect  to 
the  subject  of  Boundary— General  principles  applicable  to  the  descrip- 
tion  of  Boundaries ■^ ' 

CFIAPTER  II. 

The  rights  of  property  on  the  sea-shore— How  the  same  may  be  affected  by 
grants  or  prescriptions— The  Law  of  Boundary  witii  reference  to  these 
rights— What  is  the  Boundary  of  private  property  bordering  on  the  sea,      31 

CHAPTER  III. 

The  rights  of  property  on  navigable  rivers  where  the  tide  ebbs  and  flows — 
The  Law  of  Boundary  with  reference  to  these  rights— The  Rules  appli- 
cable to  the  Boundary  of  private  property  bordering  on  navigable  rivers,      40 

CHAPTER  IV. 

The  riirhts  of  property  on  unnavigable  rivers  where  the  tide  does  not  ebb 
and  flow— The  Rules  of  Law  applicable  to  tlie  Boundary  of  private  pro- 
perty bordering  on  these  strejuns — The  Common-law  Doctrine  as  to  what 
are  unnavigable  rivers,  and  where  the  same  is  recognized— Law  of  Boun- 
dary in  respect  to  artificial  water-courses 


49 


CHAPTER  V. 

The  Law  of  Boundary  in  respect  to  lal;es  and  poc^— Rules  applicable  to 
lands  adioining  these  bodies  of  fresh  water  wher^ie  Boundary  is  limited 
to  the  margin  of  the  lake  or  pond "^'* 


Q  TABLE   OF  CONTENTS. 

CHAPTER  YI. 

PAGE. 

The  Law  of  Boundary  in  respect  to  islands— Principles  on  which  the 
ownership  of  newly-iormed  islands  is  to  be  determined 73 

CHAPTER  YII. 

The  Law  of  Boundary  as  affected  by  Maritima  Incrementa,  or  increase  of 
land  by  the  sea.  and  the  Rule  in  respect  to  Alluvion  and  Reliction— How 
Alluvion  and  Reliction  are  to  be  divided  among  the  parties  entitled  to 
them— The  Rule  in  respect  to  Avulsion 81 

CHAPTER  VIII. 

The  Law  of  Boundary  as  relates  to  sea-walls,  embankments,  purprestures, 

and  the  like— The  Rule  as  applied  to  navigable  streams— The  Scottish 

and  Roman  Laws  upon  the  subject— Duty  of  preserving  sea-walls,  and 

the  like 

CHAPTER  IX. 

The  Law  relating  to  Boundary  of  Lands  upon  Roads  and  Streets— Rule  in 
respect  to  public  and  private  ways  the  same— Presumptions  as  to  waste 
lands  adjoining  highways— Law  of  Boundary  in  respect  to  ditches  and 
walls 


95 


•103 


CHAPTER  X. 

Rules  for  the  construction  of  grarts  in  respect  to  Boundary— Principles 
governing  the  descriptive  language  of  deeds  of  real  estate — The  aids 
which  may  be  resorted  to  in  the  construction  of  conveyances  of  laud. . .     118 

CHAPTER  XL, 

Construction  of  Particular  Conveyances  in  respect  to  Boundary — Illustra- 
tions of  the  Rules  of  Construction  by  the  cases  considered — Cases  mis- 
cellaneously stated 133 

CHAPTER  XII. 

Further  cases  passed  upon  by  the  Courts,  giving  construction  to  particu- 
lar conveyances  in  respect  to  Boundary —Cases  miscellaneously  stated. . .     1-15 

CHAPTER  XIII. 

Further  cases  passed  upon  by  the  courts  giving  construction  to  particular 
conveyances  in  respect  to  Boundary — Cases  miscellaneously  stated 156 

CHAPTER  XIV. 

Further  cases  passed  upon  by  the  courts,  giving  construction  to  particular 
c(»nvoyauccs  in  respect  to  Boundary — Cases  miscellaneously  stated 107 


TABLE   OF  CONTENTS. 


CIIAFTER  XY. 

PAGE, 

Further  cases  passed  upon  by  the  courts,  giving  construction  to  particular 
conveyances  in  respect  to  Boundary— Some  cases,  both  English  and 
American— Cases  miscellaneously  stated l'^9 

CHAPTER  XVI. 

Further  cases  passed  upon  by  the  courts,  giving  construction  to  particular 
conveyances  in  respect  to  Boundary — Cases  in  the  American  courts 
miscellaneously  stated ^'^^ 

CHAPTER  XYIL 

Still  further  cases  passed  upon  by  the  courts,  giving  construction  to  par- 
ticular conveyances  in  respect  to  Boundary— Cases  miscellaneously 
stated 


203 


CHAPTER  XVin. 

Cases  passed  upon  by  the  courts  relating  to  Boundary  of  lands  adjoining 
the  sea  and  rivers,  and  other  bodies  of  water  and  streams— Cases  miscel- 
laneously stated *^" 

CHAPTER  XIX. 

The  Rules  in  respect  to  Boundaries  of  States  and  Territories,  Counties  and 
Towns— Some  adjudicated  cases  referred  to— Jurisdiction  in  such  cases,     233 

CHAPTER  XX. 

Remedies  and  proceedings  to  determine  unsettled  Boundaries— When  the 
question  may  be  settled  at  law— Statutory  tribunals  to  settle  Bound- 
aries—The French  and  Roman  codes- Legal  remedies  in  the  American 
Stales— Settling  disputed  Boundary  by  Parol  Agreement 244 

CHAPTER  XXL 

Remedies  and  proceedings  to  determine  unsettled  Boundaries  in  a  Court  of 
Eouitv— Jurisdiction  in  such  cases— Cases  in  which  jurisdiction  has  been 
entertained  "^"^^ 

CHAPTER  XXII. 

Remedies  and  proceedings  in  Equity  to  determine  unsettled  Boundaries 
of  land— Certain  rules  held  to  apply  to  all  cases  of  confusion  of  Bound- 
ary—Cases in  which  Equity  jurisdiction  has  been  denied 2G9 

CHAPTER  XXIII. 

Tlie  methods  by  which  the  Boundary  of  lands  is  established— The  evi- 
dence in  cases  relating  to  Boundary  of  real  property— Construction  of 
grants — Parol  evidence  in  cases  of  uncertainty  ^ft  ambiguity— Practical 
location  of  Boundary '^° 


TABLE   OF  COXTENTS. 


CHAPTER  xxiy. 

PAOB. 

Evidence  in  Boundary  cases— Usage  and  hearsay  testimony — Declarations 
of  parties  to  grunts  and  deceasetl  witnesses 294 

CHAPTER  XX Y. 

Evidence  in  Boundary  cases — Judgments  and  otlier  adjudications — Posses- 
sion and  acts  of  ownership 307 

CHAPTEPv  XXVI. 

Rules  relating  to  trees  and  hedges  on  the  Boundaries  of  property — The 
ownership  of  trees  wliose  roots  extend  into,  or  whose  branches  overhang, 
the  laud  of  the  adjacent  proprietor — Tiie  property  in  the  fruit  of  such 
overhanging  brandies — Remedies  in  such  cases 318 


CHAPTER  XXVII. 

The  Law  relating  to  the  Boundaries  of  parishes — Some  points  of  interest 
respecting  Boundaries  not  hereinbefore  distinctively  noted — The  points 
promiscuously  stated 328 


PART     II. 

OF     THE      LAW      OF     FENCES 


CHAPTER  XXVIII. 

Wliat  constitutes  a  Fence— Xo  obligation  at  Common  Law  to  maintain 
Fences— How  the  subject  is  regulated— Some  points  relating  to  the  obli- 
gation to  repair  Fences 341 

CHAPTER  XXIX. 

Rules  in  respect  to  the  erection  of  Fences— The  ownership  of  Fences  and 
other  incidents — Cimscquence  of  the  neglect  to  keep  Fences  in  repair — 
■Who  may  take  advautujje  of  a  defective  Fence 351 


TABLE   OF  coy  TENTS. 


CIIAPTEH  XXX. 

PAGB. 

Statutes  of  the  several  States  respecting  Fences — Laws  of  New  York — 
Rules  respecting  division  Fences — Presumptions  where  the  sufHciency 
of  a  Fence  conies  in  question — Pleadings  in  such  cases 3G1 

CHAPTER  xxxr. 

Statutes  of  the  several  States  respecting  Fences — Laws  of  New  York — 
Sufficiency  of  Fences  in  the  State,  how  determined — Powers  of  the  elec- 
tors of  the  towns  in  such  cases 371 

CHAPTER  XXXII. 

Statutes  of  the  several  States  respecting  Fences — Laws  of  New  York — 
Obligations  of  railroad  companies  in  respect  to  Fences — Consequences  of 
neglect 380 

CHAPTER  XXXIIL 

Statutes  of  the  several  States  respecting  Fences — Laws  of  New  York — 
Rules  lelating  to  encn^achments  by  Fences  upon  highways — Fence-view- 
ers and  their  duties  and  powers — Some  points  relating  to  Fences,  miscel- 
laneously stated — Fences  in  the  city  of  New  York — Impounding  of 
animals  trespassing  upon  Fenced  inclosures 390 

CHAPTER  XXXIY. 

Statutes  of  the  several  States  respecting  Fences — Laws  of  Maine — The 
Fence-viewers  and  tlieir  powers  and  duties — Rules  respecting  partition 
Fences — Railway  companies  to  Fence  tlieir  roads — Decisions  of  the 
courts  upon  the  subject — Laws  of  New  Hampshire — Regulations  con- 
cerning partition  Fences — Certain  provisions  of  ihe  Statute  similar  to 
the  Maine  Statutes — Decisions  of  the  courts  on  the  subject  of  Fences. . .     399 

CHAPTER  XXXV. 

Statutes  of  the  several  States  respecting  Fences — Laws  of  Vermont — 
Rules  relating  to  partition  and  other  Fences — Railroad  corporations 
required  to  Fence  tlie  sides  of  their  roads — Decisions  of  the  courts 
respecting  Fences  in  the  State— Laws  of  IMassacliusetts — Rules  relating 
to  partition  Fences,  and  the  decision  of  the  courts  concerning  the  same. .     411 

CHAPTER  XXXYI. 

Statutes  of  the  several  States  respecting  Fences — Laws  of  Rhode  Island — 
Lawful  Fences  tlierein — Rules  relating  to  partition  Fences — Rule  relating 
to  water  Fences— Laws  of  Connecticut — Rules  in  respect  to  line  or  parti- 
tii)n  Fences — Decisions  of  the  courts  upon  the  subject — Fences  along  the 
sides  of  railways — Rule  respecting  th^|iencing  of  homestead — Fencing 

of  common  lands 423 

2 


10  TABLE   OF  COXTENTS. 


CHAPTER  XXXYIL 

PAGE. 

Stnlutes  of  tlie  several  States  respecting  Fences — Laws  of  New  Jersey — 
What  are  lawful  Fences  in  the  State — Rules  in  respect  to  division 
Fences — Road  and  street  Fences  in  the  township  of  Linden — Powers  of 
the  township  committees — Laws  of  Pennsylvania — What  inclosurestobe 
Fenced  iu  the  State — Rules  in  respect  to  partition  Fences — Party  walls 
and  Fences  in  Philadelphia — Laws  of  Delaware — Rules  in  respect  to 
partition  and  other  Fences  in  the  State — Laws  of  ]\Iaryland — No  general 
rules  in  respect  to  Fences  iu  the  State — Laws  of  Virginia — What  is  a  law- 
ful Fence  in  the  State — Laws  of  West  Virginia — AVhat  is  a  lawful  Fence 
in  the  State,  and  rules  respecting  division  Fences  therein 438 

CIIAPTEPw  XXXYIII. 

Statutes  of  the  several  States  respecting  Fences — Laws  of  Ohio — Laws  of 
Michigan — Laws  of  Indiana — Laws  of  Illinois — Statutes  and  decisions 
of  the  courts  upon  the  subject  of  Fences 448 

CHAPTER  XXXIX. 

Statutes  of  the  several  States  respecting  Fences — Laws  of  Wisconsin — 
Laws  of  Minnesota — Laws  of  Iowa — Statutes  and  decisions  of  the  courts,    459 

CHAPTER  XL. 

Statutes  of  the  several  States  respecting  Fences — Laws  of  Missouri — Laws 
of  Kansas — Laws  of  Nebraska,  Nevada,  Oregon  and  California — Statutes 
and  decisions  of  the  courts  upon  the  subject  of  Fences  in  those  States. .     472 


CHAPTER  XLI. 

Statutes  of  the  several  States  respecting  Fences — Laws  of  North  Carolina, 
South  Carolina,  Georgia,  Florida  and  Alabama— Statutes  and  decisions 
of  the  courts  upon  the  subject 480 

CHAPTER  XLII. 

Statutes  of  the  several  States  respecting  Fences— Laws  of  Kentucky,  Ten- 
nessee, Mississippi,  Louisiana,  Arkansas  and  Texas.  Statutes  and  deci- 
sions of  the  courts  upon  the  subject 496 

CHAPTER  XLin. 

The  rights  and  liabilities  of  landlords  and  tenants  in  respect  to  Fences  on 
the  demised  property— Rights  of  the  tenant  in  hedges,  bushes  and  other 
Fences  on  the  demised  property— Liability  to  repair  Fences  as  between 
landlord  and  tenant- Covenants  to  keep  Fences  in  repair 504 


TABLE   OF  CONTENTS.  11 

P»AK.T     III. 
OF    THE    LAW    OF   V/ I  N  D  O  VsT    LIGHTS. 


CHAPTER  XLIV. 


Importance  and  nature  of  the  right  to  light  and  air— Suggestions  in  respect 
to  the  right  of  prospect  or  view,  and  pure  air— Right  to  Window  Lights 
the  same  in  city  and  country 


FAei. 


515 


CHAPTER  XLY. 

The  methods  by  which  the  riglit  to  Window  Lights  may  be  acquired— The 
English  authorities  upon  the  subject,  and  the  English  Prescription  Act. .     521 

CHAPTER  XLYI. 

Rules  respecting  the  right  to  Window  Lights  in  the  American  States- 
Decisions  of  the  courts  of  New  York  and  Massachusetts  upon  the  subject 
of  light  and  air 


531 


CHAPTER  XLVII. 

Rules  respecting  the  right  to  Window  Lights  in  the  American  States — 
Decisions  of  the  courts  in  Elaine,  Vermont  and  some  others  of  the  ITnited 
States,  upon  the  subject  of  light  and  air— Doctrine  of  the  authorities  ...     543 


CHAPTER  XLVIII. 

The  extent  of  the  right  to  Window  Lights— The  general  rule  upon  the  sub- 
ject—How the  right  may  be  lost— The  right  under  special  coven^ints. ...     553 

CHAPTER  XLIX. 

The  remedies  for  injuries  to  the  right  to  Window  Lights— The  remedy  by 
action  at  law-Remedy  by  suit  in  equity-The  evidence  in  such  cases. . .     56C 


INDEX  TO   CASES  CITED. 


A.  PAGE. 

Abbott  V.  Al)bott 129 

Abbott  V.  Pike 204 

Abergavenny  v.  Thomas 262 

Adams  V.  Boston  Wharf 229 

Adams  v.  Frothinjjham 42,  232 

Adams  v.  McKenney 444 

Adams  v.  Pease 76 

Adams  V.  Rivers 106,  149 

Adams  v.  Rockwell 289,  290 

Adams  v.  Saratoga  and  W.  R.  R.  Co  ..  106,  149 

Adams  v.  Van  Alstyne 347 

Agawam  Canal  Co.  v.  Edwards.  221 

Aiken  V.  Ketchum 326 

Alabama  v.  Georgia 220,  239 

Aldeii  V.  Nooncn 201 

Aldred's  Case 517 

Ale.vaiider  V.  Lively 286 

Alger  V.  Pool 418 

Allen  V.  Kingsbury 132 

Alton.  City  of,  v.  111.  Transp.  Co 124 

Aramidown  v.  Ball 176 

Ammidown  V.  Granite  Bank 175 

Anderson  v.  James 152 

Andre  v.  N.  VV.  R.  R.  Co 471 

Andrews  V.  Todd 158 

Anonymous 318,  358 

Anthony  V.  Ilaney 325 

Arnold  V.  Mundy 33,    34 

Arthur  v.  Case 563 

Ashley  V.  Eastern  Railroad..  175,  228,  229,  231 

Aston  V.  Lord  Exeter 262 

Atkins  V.  Chilson 540 

Atkins  V.  Holton 270,  280 

Alt.  Gen.  v.  Boston  Wharf 228,  229 

Att.  Gen.  v.  Bowyn 261 

Att.  Gen.  v.  Chambtrlain 273,  278 

Att.  Gon.  V.  Chambers 34,  37,  95,  273 

Att.  Gen.  V.  Doughty 517 

Att.  Gon.  V.  Drummond 295 

Att.  Gen.  V.  Farmcn 39 

Att.  Gen.  v.  Fullerton 262,  263 

Att.  Gon.  V.  nammer 37 

Att.  Gen.  v.  Jones 37^  294 

Alt.  Gen.  V.  Lonsdale 98 

Att.  Gen.  v.  Nichol 564 

Att.  Gen.  v.  St.  Anbin 253 

Att.  Gen.  v.  Stephens 203 


PAGE. 

Att.  Gen.  v.  Stowell 507 

Auburn  and  C.  P.  R.  Co.  v.  Douglas 534 

Austin  V.  Carter 41 

Avery  v.  Baum 282,  293 

Aycock  V.  Railroad  Co 489 

Aylesworth  v.  Chicago,  etc.,  R.  R.  Co 471 

Aylesvvorth  V.  Harrington 450.  451 

B. 

Babcock  v.  Utter 147 

Back  V.  Stacey 552,  567 

Badger  V.  S.  Y.  R.  Co 44 

Bailey  v.  Appleyard 525 

Bailey  v.  Bryan 487 

Bailey  v.  White 180 

Baird  v.  Fortune 284,  295 

Bakery.  Boles 232 

Baker  v.  Lakeman 41 9 

Baldwin  v.  Brown 293 

Ball  V.  Cox 3.37 

Ball  V.  Hubert 44 

Ball  V.  Woodward 124 

Banks  V.  Am.  Tract  Society 537 

Banksv.Ogden 111,170 

Bardwell  v.  Ames 76 

Barker  V.  Bates 41 

Baring  v.  Nash 280 

Barnard  v.  Martin 128 

Barney  V.  Miller 129 

Barnum  V.  Van  Dnsen 434 

Barrett  v.  New  Orleans 86 

Barry  v.  Garland 206 

Bartholomew  v.  Edwards 168 

Bartlett  v.  Hubert 334 

Basingstoke  v.  Bolton 267 

Batcheklerv.  Keniston 90 

Bates  V.  Bower 206 

Bather  &  Simpson's  Case 327 

Baton's  Case 356 

Battiskill  v.  Reed 356 

Beal  V.  Gordon 129,  162 

Beaufort  V.  Mayor  of  Swansea 361,  294 

Beaufort V.  Smith 113 

Bechtel  V.  Neilson 460,  464 

Bedford,  Duke  of,  v.  British  Museum 560 

Bceson  V.  Patterson J30 

Beldcu  V.  Seymour 338 


INDEX   TO    CASES   CITED. 


13 


PAGE. 

Belfast  Dock,  in  re...  36.  37,  119,  294,  309,  317 

Belkuap  V.  Belknap 5()3 

Bell  V.  Savage 211 

Bellas  V.  Cleaver 334 

Bennison  v.  Cartwrisht 5-1 

Benson  v.  Baldwin 2ti7,  280 

Berridge  V.  Ward 104,  3:3-2 

Berriman  v.  Peacock 50t) 

Bethje  v.  Houston,  etc.,  R.  R.  Co 504 

Bickett  V.  Morris 49,  98,  100 

Birdv.Smith ^ 

Birmingham  v.  Anderson 169 

Bishop  V.  Bishop 397 

Bishop  V.  Seeley 194 

Bit^sell  V.  N.  Y.  Central  R.  R.  Co 107,  142 

Bissell  V.  Southworth 425 

Bladen's  Lessee  V.  Cockey 304 

Blain  V.  Smith 337 

Blain  v.  Taylor 344 

Blain's  Lessee  V.  Chambers 171 

Blake  V.  Doherty 285 

Blakeley  v.  Bestor 133,  20U 

Blanchard  v.  Porter .     59 

Blissv.  Hall 520 

Blundell  v.  Cotterall 34 

Boardman  v.  Reed's  Lessees 29S 

Bolton  V.  Lawn . .  ' —  336 

Bolton  V.  Simpson .• 268 

Bond  V.  Fay 165,  173 

Bonney  v.  Morrill 168 

Booth  V.  Wilson 359 

Boston  V.  Richardson 110,  113,  118,  126 

Bosworth  V.  Sturtevant  132 

Boteler  V.  Spellman 260 

Bott  V.  Burnell 129 

Bouvcrie  v.  Prentice 267 

Bowery  v.  Pope 528 

Bowie's  Case 507 

Bowman's  Devisees  v.  Wathen 59 

Bownv.  Hill 561 

Boyd  V.  Dowie 264,  266 

Boyle  v.  Tamlyn 343,  349 

Boy n  V.  Brown 526 

Brabant  v.  Wilson 261 

Bradbee  v.  Christ's  Hospital 355 

Bradbury  v.  Gilford 404 

Bradford  v.  Cressy . 221 

Bradley  v.  Gill 526 

Bradley  v.  Rice 72 

Bradley  v.  Wash.,  Alex.,  etc.,  S.  P.  Co 122 

Brady  v.  Ball 4.52 

Brain  v.  Harris 207 

Brainardv.  Boston,  elc,  R.  R.  Co 168 

Brandt  ex  dem.  v.  Ogden 297 

Bratton  V.  Clawson 1*3 

Brewster  v.  De  Frcmery 510 

Bridgewater  v.  Booth 40 

Bridgewater  v.  Edwards 267 

Bridgewater  Trustees  v.  Bootle-cam-Lina-    ^ 
ere 330,  332 


PAGE. 

Bridgman  V.  Jennings 312 

Brimmer  v.  Long  Wharf 230  233 

Brisco  V.  Lomax 305,  308 

Brittin  v.  Van  Camp 440 

Broadwater  v.  Blot 359 

Broadwell  v.  W ilcox, 469 

Bronk  v.  Becker 3t)4 

Brousou  V.  CotHn 344 

Brooks  v.  Allen 46:3 

Brown  v.  Burringtou _. 510 

Brown  v.  Edson 3:57 

Brown  v.  Gregg 98 

Brown  v.  Mil waukie  R.  R.  Co 465 

Brown  v.  Scofield 62 

Brown  v.  Windsor 354 

Brown's  Case 356 

Brownlow  v.  Met.  Board  of  Works 98 

Bruffv.  Mali 389 

Brundage  v.  Warner 526 

Brunswick  v.  Dunning 33S 

Bryan  V.  Kortright 395 

Bryan  v.  Whitler ...  526 

Buchanan  v.  Moore 300 

Buck  V.  Squires 198 

Buckman  V.  Buckman 108 

Buckmaster  v.  Cool 456 

BuUard  V.  Harrison 117 

Bullock  V.  Wilson 54 

Burchfield  v.  Northern  Central  R.  Co 786 

Burleson  v.  Teeple 471 

Burlingame  v.  Robbing 302 

Burnett  v.  Thompson 187 

Burnham  v.  Onderdonk 367 

Bart  V.  Brainard 342,  360,  377 

Bute  V.  Glamorganshire  C.  Co 260 

Butler  V.  Barlow 46i 

Butt  V.  Imperial  Gas  &  Coke  Co 518 


c. 

Calhoun  V.  Price 166 

Calkins  V.  Lavelle 121 

Calkins  v.  Matthews 479 

Call  v.  Lowell 2.30 

Calmady  v.  Rowe 36,  37,  295 

Calvert  V.  Fitzgerald 186 

Camden  v.  Creel 160 

Campbell  V.  Johnson 1:30 

Campbell's  Case 446 

Canal  Appraisers  V.  The  People 51,  150 

Canal  Commissioners  V.  The  People 64 

Canal  Trustees  V.  Haven 217 

Canefox  v.  Crenshaw 473,  474 

Canfuran  v.  Pres.  Cong.  Cedar  Spring 305 

Cansler  v.  Henderson 161 

Cantrell  v.  Alderholt 491 

Carlisle  v.  Graham 92 

Carnarvon  v.  Villebois 313 

Carpenter  v.  Halsey 397 

Carrig  v.  Dee 543 

Carruthers  v.  HoUis »•  •  •  •  359 


14 


INDEX  TO    CASES   CITED. 


PAGE. 

Carson  v.  Blazee 53 

Case  V.  Haight 563 

Catev.Cate 410 

Cates  V.  Wadlington 55 

Cau!k  V.  Everly 510 

Cecil  V.  Pacific  R.  R.  Co 474 

Chambers  v.  Matthews 440 

Champlain  and  St.  Lawrence  R.  R.  Co.  v. 

Valentine 06 

Champlin  V.  Bendleton 108 

Chandler  V.  McCord 131 

Chapman  v.  Cumberland  Treasurer 425 

Chapman  V.  Edwards 231 

Chapman  v.  Excelsior,  etc.,  Co 183 

Chapman  V.  Kimball 42,    43 

Chapman  v.  N.  Y.  Central  R.  R.  Co S85 

Chapman  V.  Spencer 272 

Chapman  v.  Wilbur 236 

Chase  V.  White 246,  287 

Chatham  v.  Brainard 108 

Chcetham  V.  Hampson 505,  507 

Cherryv.Boyd 301 

Cherry  V.  Stein 545 

Cheshire  V.  Shutesbury 192 

Chicago  and  A.  R.  R.  Co.  v.  Canffman 456 

Chicago,  B.  and  Q.  R.  R.  Co.  v.  Cauftman,  456 

Child  V.  Starr 150,  154 

Chinan  V.  Cooke 312 

Chryi^larv.  Westfall  363 

Church  V.  Holland 79 

Churchill  V.  Evans 343 

Churchill  v.  Reamer 121 

Clanrickard  v.  Sidney 128 

Clansey  v.  Iloudlitte 231 

Claremont  v.  Carlton 285 

Clark  V.  Adams 413 

Clark  V.  Brown 367,  396 

Clark  V.  Clark 553 

Clark  V.  Rochester,  L.  and  N.  F.  R.  R.  Co.,  385 

Clark  V.  Taber 336 

Clark  V.  Yonge 273 

Clayes  v.  Sweetser 199 

Clayton  V.  Cookes 262 

Clayton  v.  Corby 350,  558 

Cleaveland  V.  Flngg 201 

Cleaveland  V.  Smith 191 

Clement  v.  Canfield 383 

Ckris  V.  Tieman 547 

Cleveland  v.  Cleveland Ill 

Cleveland,  C.  and  C.  R.  R.  Co.  v.  Elliot....  449 

Clifton  V.  O Wynne 259 

Cllmer  V.  Wallace .  473 

Cloiigh  V.  Bowman 12.3,  284,  284 

Clowyers  v.  Sawyers 600 

CoBig  V.  Taft laS 

Cochico  Co.  V.  Whittler 120 

Cocker  V.  Cowpcr 526 

Corknll  v.  McC^ulnn 189 

Codman  v.  Evans 113,  125,  186 

Codinnn  V.  Winslow 41,  230,  233 


FAOB. 

Colden  V.  Eldred 370 

Colesv.  Wooding 300 

Collier  v.  Pierce 541 

Collins  V.  Benbury 56 

Collins  V.  Dorchester 422 

Comerford  v.  Dupuy 485 

Comes  V.  Minot 141 

Commissioners  of  Canal  Fund  v.  Kempshall, 

52,  65,  150 
Commissioners  of  Hom.  River  v.  Withers,    57 

Commonwealth  v.  Alger 229-231 

Commonwealth  v.  Charleetown 34,    41 

Commonwealth  v.  Fisher 54 

Commonwealth  v.  Roxbury 231,  2.32 

Compton  V.  Richards 530 

Comstock  V.  Des  Moines,  etc.,  R.  R.  Co  ...  471 

Conkliu  V.  Parsons 463 

Connecticut  v.  Pennsj'lvania 2S8,  299 

Constable's  Case 37 

Cook  V.  Bubcock 204 

Cook  V.  Fan-ington . .  178 

Cook  V.  Green 103 

Coombs  V.  Coether 310 

Cooper  V.  Hubbuck 524 

Cooper  V.  Marshall 327 

Coot  V.  Morea 452 

Corbitt  V.  Porter 353,  357 

Corkhill  V.  Landers 255 

Corlis  V.  Little 440 

Corning  v.  Troy  Iron,  etc..  Nail  Fac 294 

Corwin  v.  N.  Y.  &  Erie  R.  R.  Co.,  375,  384,  369 

Coster  V.  Peters 137 

Cotching  V  Bassett 527 

Cottle  V.  Young  157 

Cox  V.  Freedley 213 

Cox  V.  Ja*nes 155 

Cox  V.  Pryor 528 

Cox  V.  Rcbbius 440 

Cracknell  v.  Mayor  of  Thetford 98 

Craft  V.  Yeaney 216 

Crocker  v.  Bragg  78 

Crowell  V.  Maughs 337 

Cubitt  V.  Porter 118 

Cunningham  v.  Dorsey 545 

Cunningham  v.  Robinson 337 

Currier's  Co.  v.  Corbitt 531 

Curtis  V.  Ayrault 120 

Curtis  V.  Curtis 274 

Curtis  V.  Francis 210,  228,  229,  231,  232 

Cutler  V.  Tufts 129 

Cutts  V.  Hussey 34,  405 

Cutts  V.  King 204 

D. 

Daggett  V.  Willey 297 

Dall  V.  Brown 201 

Dana  v  Middlesex  Bank 192 

Daniel  Ball,  The 47 

Daniel  V.  Wilkin 314 

Dauner  v.  South  Carolina  R.  R.  Co 490 


INDEX   TO    CASES   CITED. 


J5 


PAGE. 

Dany ill  v.  tJpton M2 

Davenport  v.  Brownie}' 2(i2 

Davies  v.  Williams. 32" 

Davis  V.  Blackwall  R.  Co 351J 

Davis  V.  Builiugton,  etc.,  R.  R.  Co 471 

Davis  V.  Campbell 415 

Davis  V.  Hawley 212 

Davis  V.  Marshall 526 

Davis  V.  Rainsford 30,  120,  312 

Davis  V.  Townsend 254 

Dawes  v.  Prentice    228 

Dean  v.  Eklridj,'e 367 

Dean  V.  Sullivan  R.  R.  Co 410 

Deerfield  v.  Ames 75,  91,  228.  229 

Deering  v.  Long  Wharf 230,  231 

De  Levillain  v.  Evans  159 

Den  V.  Sasser 300 

Den  V.  Southard 297,  300 

Den  V.  Van  Ilouton 161 

Dendj'v.  Simpson  116,  180 

Denmeyer  v.  Legg 148,  149 

Dent  V.  Auction  Mart  Co  . . .  525,  552,  555,  556 

558 

Depew  V.  Board  of  Trustees,  etc 45 

De  Veney  v.  Gallagher 161,  265 

Devonshire  V.  Ilodnett 317 

Dewey  v.  Chicago,  etc.,  R.  R.  Co 471 

Dexter  v.  Bruce 421 

Dexter,  etc.,  Co.  v.  Dexter 183 

Deybell's  Case 2.36 

Deyo  v.  Stewart 366 

Dickerson  V.  Stoll 266 

Dikerman  v.  Taylor 211 

Dillingham  V.  Smith 65 

Dixon  V.  Clow 397 

Doane  v.  Broad  St.  Association 175,  231 

Doanev.  Wilcntt 232 

Dobson  V.  Finley 117 

Dodd  v.  Holme 355 

Doe  V.  Bird 358 

Doe  V.  Ilampson 115 

Doe  V.  Kemp 114,  317 

Doev.  Lakin 312 

Doe  V.  Martin 284 

Doev.  Pearsey... 103,  352 

Doev.Porter 129 

Doev.Reed 345 

Doev.Rice  124 

Doev.  Roberts 313 

Doe  V.  Thompson 119,  132 

Doe  V.  Wilmington,  etc.,  R.  R.  Co 159 

Doev.  Wilson 608 

Donegal  V.  Lord  Templemore....  294,  309,  317 

Douglas  v.  McCausland 512 

Drake  V.  Curtis 229,231 

Dreer  V.  Carskadden 334 

Drew  V.  Spaulding 410 

Dubois  V.  Deaver 322,  323 

Dudley  v.  Elkins Sajk 

Dula  V.  McGhee TO 


PAGE. 

Dnncombe's  Case 118 

Dunham  v.  Wilkins 145 

Dunham  v.  Williams 109,  127,  134 

Dunklee  v.  Wilton  R.  R.  Co 63 

Dunlop  V.  Stetson 231 

Dunnv.  English 120 

Durantv.  Riddell 547 

Durell  V.  Pritchard  . 505 

Dutton  V.  Strong 65 

Dyke  v.  Dunston 325 

Dysart  v.  Leeds 442 

Dyson  V.  Leek 191 

E. 

Eames  v.  Patterson 400 

Earl  V.  Lewis 314 

Early  v.  Fleming 473 

East  Haven  v.  Hemingway 42,    43 

Eaton  V.  Knapp 197 

Eaton  V.  Rice 409 

Edgarton  v.  Moore    429 

Ela  v.  Card 128 

Elder  v.  Bnrns 56 

Ellis  v.  Carey 55 

Ellisv.  Ellis 401 

Ellis  V.  London  and  S.  W.  R.  Co 326 

Ehvood  V.  Bullock Ill 

Emerson  V.  Taylor 91,  228,  230 

Emerson  V.  White 119 

Enright  v.  San  Frarcisco,  etc.,  R.  R.  Co...  486 

Estep  V.  Estep 510 

Esty  V.Baker 172 

Evans  v.  Curloy 208 

Evans  v.  Jayne 443 

Evans  v.  Rees 309,  310 

Evans  V.  Taylor 313 

Evans'  admr.  v.  Temple 178 

Ewing  V.  Burnet 120 

F. 

Fairbanks  v.  Chllds 407 

Fairot  v.  Mettler 510 

Fame,  The 237 

Farisv.  Philan 159 

Farmer's  Heirs  v.  Mayor  of  Mobile 298 

Fay  V.  Prentice  356 

Fentiman  v.  Smith 526 

FoofFeesof  Heriot's  Hospital  v.  Gibson 559 

Ferris  v.  Van  Buskirk 362 

Field  V.  Huston 130 

Field  v.  Proprietors,  etc 421 

Fifty  Associates  v.  Tudor 541 

Finlay  v.  Cook 137 

Fisher  V.  Carter 80 

Fisher  V.  Farmers' Loan  Co 405 

Fishery.  Smith 109,  113 

Fishmongers' Co.  v.  East  India  Co 517,  521 

Fitch  v.  Comrs.  Highways 392,  394 

Fitzgerald  v.  Lord  Norbnry 260 

Fitzpatrick  v.  Robinson 34 


16 


IXDEX   TO    CASES    CITED. 


PAGE. 

FHzwater  v.  Stout 444 

Flonigau  v.  Philadelphia 54 

Fletcher  v.  Phelps C5,    (17 

riit'ht  V.  Thomas 524 

Flora  V.  Corbeau 526 

Floyd  V.  Uice... 292 

Foley  V.  VVy eth 501 

Ford  V.  Lacey 93 

Foreman  v.  Sandefur 286 

Fought  V.  Holway 172 

Fox  V.  Burton 427,  429 

Foy  V.  Neal 123 

Franklin  V.  Wells 425 

French  v.  Carhart 131 

French  v.  Pearce 124 

Frewen  V.  Phelps 523 

Fiilwood  V.  Graham 338 

Furman  V.  Reed 313 

G. 

Gale  V.  Abbott 524,  560 

Gallup  V.  Mulvah 408 

Gano  V.  Aldridge 164 

Gardner  v.  Newburgh 563 

Garritt  v.  Sharpe 555 

Gavit  V.  Chambers 60 

Gayford  v.  Nicholls 356 

Gear  V.  Bariium 127,  157 

Geast  V.  Barker 273 

George  v.  Thomas 265 

George  v.  Wood 178 

Georgia,  etc.,  R.  R.  Co.  v.  Anderson 492 

Gerbcr  v.  Grabel 508 

Gorman  Mutual  Ins.  Co.  of  Ind.  v.  Grim...  132 

Oerrith  v.  Clongh 85 

Gilbert  v.  Peteler 535 

Gibson  v.  Bogy 122 

Gibjion  7.  Brockway 171 

Gibfon  V.  Smith 188 

Gibson  v.  Tyson 122 

Gibson  V.  \'aughn 338 

GilVord  V.  First  Pres.  S.,  Syracuse 505 

Glusby  V.  Morris 126 

Glave  V.  Harding 530 

Glidden  v.  Towle 408 

Glover  V.  Shields 139 

Glynn  v.  Scowen 202 

Godfrey  v.  Littel 259,  263,  272,  278 

(•o(lmaiiche8tcr  v.  Phillips 116 

Gooch  V.  Stephenson 400 

Ooodday  v.  Mickell 330 

OcMxlwin  V.  Appleton 2.'J6 

(torinan  v.  Pacific  R.  R.  Co 473 

Ooiirdin  V.  Javis 19;j 

Oourloy  v.  Duke  of  Somerset    512 

Gove  V.  Hichnrdaon 293 

Gove  V.  White 127,  167 

Oownr  V.  Kyre 507 

Grant  V.  lUack 164,214 

Gratz  V.  Hoover .    203 


PAGE. 

Gray  v.  Couvillon 336 

Gray  V.  Deliice 227,228 

Gray  v.  Waterman 4.56 

Gray  v.  West 3.52 

Great  Falls  Co.  V.  Worster 301 

Green  v.  Bales 256 

Greggv.  Gregg 444 

Gregor  V.  Stratton 4.30 

Grierson  V.  Eyre 262,  2S0 

Griffin  V.  Bixby 322 

Griffin  v.  Martin 376,  377 

Griffith  V.  McCulIum 391 

Grove  V.  Drummond 193 

Gunn  V.  Chelsea 231 

Gwinn  v.  Ditto 498 

H. 

Haight  V.  Keokuk 59 

Haines  V.  Kent 452 

Hale  V.  Clark 396 

Hall  V.  Davis 336 

Hall  V.  Pickering 210 

Halsey  V.  McCormick 84,  86,  150,  154 

Hamilton  v.  Caywood 283 

Hammond  v.  Bradstreet 311 

Hammond  V.  McLachlan 126,  149 

Hammond  v.  Zehner 5-34 

Hamner  v.  Smith 121 

Hancock  v.  Wilson 120 

Handly's  Lessee  V.  Anthony 78,  239 

Handman  v.  Bowen 367 

Hannum  V.  Kiugsiey 216 

Harbridge  v.  Warwick 525 

Hardcastle  v.  Shaf ter 253 

Hardenburgh  V.  Lockwood 378 

Haring  V.  Van  Hauten 315 

Harlow  v.  Fisk 220,  231 

Harlow  v.  Lyme  Regis 34 

Harlow  v.  Rogers 326 

Harlow  V.  Stinson 405 

Harmer's  Heirs  V.  Morris 286 

Harris  V.  Sturdivant 403 

Harrison  v.  Brown 460 

narrower  v.  Retson    391 

Harvey  V.  Graham 188 

Harvey  v.  Mitchell 119 

Harwood  v.  Oglander 273 

Hastings  V.  Stack 293 

Hathorn  V.  Stinson 64 

Havens  V.  Dale 1.30 

Haverstick  v.  Sipe 544 

Ilawesvilie  v.  Lander 127 

Hawkins  V.  Shippam 341,526 

Hayes  V.  Aiken  176 

Haywood  v.  Edwards 333 

Headam  v.  Rust 456,  4.57 

Heath  v.  Coltenback 469 

Hedge  v.  Sims 285 

Henly  v.  Mayor  of  Lyme 102 

Henry  v.  Dubuque,  etc.,  R.  R.  Co 469 


INDEX  TO    CASES   CITED. 


17 


PAGE. 

Honry  v.  Levert 494 

Heroic!  v.  Myers 471 

Heron's  Case 110 

Herrick  v.  Sixby 129 

Herring  V.  Fisher 149,  1!)" 

Herring  V.  Wiggg 288 

Herz  V.  Union  Bank  of  London 529 

Hewitt  V.  VVatkins 307,  395 

Hicks  V.  Coleman 177 

Hicks  V.  Hastings 273 

Higby  V.  Bidwell 300 

Hill  V.  Barclay 512 

Hillv.Draper 315 

Hill  V.  West 174 

Hine  v.  Munson 437 

Hine  v.  Wooding 434 

Hinnian  v.  Chicago,  etc.,  R.  R.  Co 471 

Hitchings  V.  Warner 511 

Hobokeu  Land,  etc.,  Co.  v.  Kerrigan 100 

Hodges  V.  Horsfall 312 

Hoff  V.  Tobey 135 

Hoffman  v.  Armstrong 322,  326 

Holder  v.  Chambrey 207 

Holder  v.  Coates 319 

Holford  V.  Bailey 37 

Holladay  V.  Marsh 342,  369,  374,  377 

HoUaday  v.  Svvailes 457 

Holleubcck  V.  Rowley 109 

HoUis  V.  Goldfinch 44,  !15 

Hollister  V.  HolliBter 431,  4.35 

Holmes  V.  Billingham 103,  113 

Holmes  V.  Seeley 117 

Home  V.  Memphis,  etc.,  R.  R.  Co 500 

Hopkins   Academy  v.    Dickinson,    50,  77,    83 

91 

Hopwood  V.  Schofleld 501 

Hough  tailing  v.  Hough  tailing 526 

Houghton  V.  Butler  327 

Houx  V.  Seat 473,  474 

Hovey  v.  Sawyer 182 

Howard  V.  IngersoU 56,  79,  338,  339 

Howard  V.  Robins 391 

Howell  V.  Salisbury 358 

Howell  V.  Saule 187 

Howell's  Lessee  V.  Tilden 304 

Hubbard  v.  To wn 544 

Hubbell  V.  Peck 427 

Huffman  v.  McCrea 286 

Hughes  V.  Keene 525 

Hunt  V.  Johnson 290,  314 

Hunt  V.  White 259 

Huntington  V.  Whaley 335 

Kurd  V.  Rutland  •&  B.  R.  R.  Co  412 

Hutchina  V.  Dixon 124 

Huichinson  v.  Carpenter 5.57 

Hutchinson  v.  Maius :  353 


I. 

Hia  V.  Hannibal,  etc.,  R.  R.  Co 474 

Idev.  Pearce 181 

3 


PAGE. 

Illinois  Central  R.  R.  Co.  v.  Arnold 457,  4;.8 

Illinois  Central  R.  R.  Co.  v.  Swearinguu...  45S 

Illinois  Central  R.  R.  Co.  v.  Whelen 458 

Indianapolis,  etc.,  R.  R.  Co.  v.  Caldwell...  463 
Indianapolis,  etc.,  R.  R.  Co.  v.  Kennedy  ..  453 

Indianapolis,  etc.,  R.  R.  Co.  v.  Lowe 454 

Indianapolis,  etc.,  R.  R.  Co.  v.  Meek 45' 

Ingilby  v.  Shaf to 268 

Ingraham  V.  Wilkinson 75 

Ingram  V.  Threadgill 45,    56 

Ipswich  Docks  V.  St.  Peters 330 

Ipswich,  Ex  parte 189 

Irvin  V.  Fowler 526 

Irwin  V.  Simpson 313 

Ives  V.  Kimball 204 


Jackson  V.  Anderson 108 

Jackson  v.  Beach 121 

Jackson  V.  Blodgett 123 

Jackson  v.  Boston  .&  W.  R.  R.  Co 231 

Jackson  v.  Bowman 290 

Jackson  V.  Brownson 508,  509 

Jackson  v.  Camp . .  119' 

Jackson  V.  Clark 119,282 

Jackson  V.  Corlear 291 

Jackson  v.  Dieffendorf 290- 

Jackson  v.  Eager 254 

Jackson  V.  Ilalstead 79 

Jackson  V.  Hathaway 126,  149 

Jackson  v.  Ives 338 

Jackson  v.  Lawton 283 

Jackson  v.  Loomis 119 

Jackson  v.  Louw 149 

Jackson  V.  Marsh 282 

Jackson  V.  McCall . 290 

Jackson  v.  McConnell 338 

Jackson  v.  Moore 119 

Jackson  V.  My*rs. 121 

Jackson  V.  Newcastle. 554,  557,  565,  568' 

Jackson  v.  Parkhurst 288 

Jackson  V.  Sprague 388' 

Jackson  v.  Tibbitts 122' 

Jackson  v.  Van  Antwerp 191 

Jackson  v.  Vedder 290' 

Jacomb  v.  Knight 529' 

Jamaica  P.  Aqueduct  v.  Chandler 113i 

James  v.  Plank 558- 

Jamison  v.  Petit 255' 

Jamison  v.  Scammon 410' 

Jeffersonville,  etc.,  R.  R.  Co;  v.  Applegate,  4,531 
Jeffursonville,  etc.,  R.  R.  Co.  v.  Brevoort..  453i 
Jeffersonville,  etc.,  R.  R.  Co.  v.  Dougherty,  453- 
Jeffersonville,  etc.,  R.  R.  Co.  v.  Sweeney..  453'' 

Jenkins  v.  Bushley 26S 

Jenks  v.  Morgan 212; 

Jennings,  Ex  parte 14>: 

Jenny  v.  Brook 506- 

l»^sson  y.  Gifford 561 

^ohns  V.  Davidson 79,    80- 


18 


INDEX  TO    CASES   CITED. 


PAGE. 

Johnson  V.  Garrett li'-^ 

Johnson  v.  l^ynor 212 

Johnson  v.  Simpson 1-9 

Johnson  V.  Wing 451 

Johnson  v.  Wyatt 519 

Johnston  v.  Jones 91 

Jones  V.  Bird 35(j 

Jones  V.  Boston  M.  Corp 228 

Jones  V.  Central  R.  R.  &  B   492 

Jones  V.  Cowman 150 

Jones  V.  Goulard 87 

Jones  V.  Holstcin —  141 

Jones  V.  Hood 497 

Jones  V.  Johnston !•! 

Jones  V.  Jones 326 

Jones  V.  Parkill 366 

Jones  V.  Petlibone til 

Jones  V.  Soulard 239 

Jones  V.  Tapling 519 

Jones  V.  Tibbetts 401 

Jones  V.  Williams 317,  327,  328,  561 

Jones  V.  Witherspoon 487 

Jordan  V.  Deaton 333 

•  Jordan  v.  Mussy 208 

K. 

Kayner  v.  Timerson 

Kea  V.  Robeson 

Keith  V.  Bradford 

Kellogg  V.  Brown . .   

Kellum  V.  Smith 

Kempston  v.  Butler 

Kennebeck  Ferry  V.  Bradstreet 

Kerwhacker  v.  Cleveland,  C.  &  C.  R.  R.  Co., 

Kctcham  v.  Stolp 

Kimball  v.  Schoff 

Kimball  V.  Semper 

KIneaid  v.  Dormey 

King  V.  Large .• 

King  V.  Trafford 97, 

Kingman  v.  Sparrow 67,  150, 

Kingston  v.  Homer 

Kinney  v.  Farnsworth 

Kip  V.  Norton 290, 

Kirkpatrick  V.  Kyger 

Klein  v.  Gohrung 

Knight  V.  Ilcaton 

Knight  V.  New  Orleans,  etc.,  R.  R.  Co 

Knight  V.  Wilder 

Knowles  v.  Richards 

Knowlton  v.  Smith 

Knox  V.  Mayor  of  N.  Y 

Knox  V.  Tucker 

Kraut  V.  Crawford 

ICrnso  V.  Scripps 


140 
131 
415 
431 
355 
353 
230 
449 
457 
185 
177 
255 
544 
100 
218 
36 
300 
291 
189 
547 
414 
503 
228 
517 
333 
112 
404 

a5 

199 


L. 


LnfTerts  V.  Hannibal,  etc.,  R.  R.  Co 475 

Lnmar  v.  MInter J95 

Ijimb  V.  Hickg 418-420 

L«nipman  V.  Milks 634 


PAGE. 

Lane  V.  Gary 394 

Langlois  v.  Buffalo  &  R.  R.  R.  Co 389 

Lapish  V.  Bangor  Bank 2;}0,  231 

Larkin  v.  Taylor ;   478 

Lavillabeuve  v.  Cosgrove 547 

Law  V.  Hempstead 190 

Lawrence  V.  Combs 410 

Lawrence  v.  Hay nes 288 

Lawrence  v.  Obee 556 

Laws  V.  N.  C.  R.  R.  Co 489 

Lebeau  v.  Bergeron 3-36 

Ledyard  v.  Ten  Eyck 67 

Lee  V.  Alston 507 

Leeds  v.  Earl  of  Strafford 261 

Leeds  v.  New  Radner 274 

Leonard  v.  White 174 

L'Estrange  V.  Rowe 36,  294 

Lethulier  V.  Castleman 257,  260 

Libby  v.  Tolford 510 

Liggins  V.  Inge 5.56 

Lilley's  Lessees  v.  Kintzmiller 304 

Lincoln  V.  Wilder 1,32,  133,  197 

Linscott  V.  Fernald 285 

Lisbon  v.  Bowdoin 246 

Literary  Fund  v.  Clark 191 

Little  V.  Lathrop 342,  404,  405 

Littlefleldv.  Littleflcld 217 

Liverpool  Wharf  v.  Prescott 333 

Livettv.  Wilson., 37 

Livingston  V.  Ten  Broeck 123,  124,  295 

Llewellyn  v.  Borderly 268 

Lock  v.  St.  Paul  &  P.  R.  R.  Co 466 

Lock  wood  V.  N.  Y.  &  N.  H.  R.  R.  Co 1 58 

Logan  V.  Gedney 485 

Lokerv.  Rolle 268,  276 

Loudon  V.  Pewterers'  Co 524 

Long  V.  Fitzsimmons 510 

Long  Island  R.  R.  Co.  v.  Conklin 120 

Longley  v.  Hilton 400 

Long's  Lessee  v.  Pallelt 304 

Long  V.  Wagoner 128 

Lonsdale  v.  Nelson 326,  .327 

Lonsley  v.  Hayward .329 

Loomis  V.  Jackson 1.32 

Loomis  V.  Wilber 508 

Lord  V.  Comrs.  of  Sidney 103,  119 

Lorman  v.  Benson 61 

Lougher  v.  Williams 511 

Louisville  &  P.  R.  R.  Co.  v.  Ballard 498 

Lovat  V.  Lord  Ranelagh 512 

Lowry  v.  Inman 326 

Lozier  v.  N.  Y.  Central  R.  R.  Co 149 

Luce  7.  Cnrloy 106,  1. 50 

Lufkin  V.  Haskell 2.32 

Lylc  V.  lUchards 312 

Lyman  v.  Gipson 422 

LjTiian  V.Hale 321 

M. 

McCanuon  v.  Sinclair 41,  333 


IXDEX  TO    CASES   CITED. 


19 


PAGE. 

JlcCay  V.  California,  etc.,  R.  E.  Co 485 

McCayv.  Wait 508 

McClurev.  Little S.'ie 

McCormick  v.  Barnum 291 

McCormick  v.  Tate 456,  457 

McCoy  V.  Galloway 301 

WcCoy  V.  Hutchinson 33S 

McCreatly  V.  Thomson 545 

McCulloughv.  Wainwright 94 

McCullongh  V.  Wall 55,    77 

McDowell  V.  N.  Y.  Central  R.  R.  Co 383 

McEwen  V.  Bulkley 184 

McGlashen  v.  Tallmadge 510 

Mcintosh  V.  Tower • 511 

Mclver's  Lessee  v.  Walker 283 

McKay  V.  Woodle 488 

McManiis  v.  Carmichael 59 

McManus  v.  Finan 470 

McMillen  V.  Wilson 496 

McMnrry  V.  Spicer    284 

McPhaul  V.  Gilchrist 193 

Macon  &W.  R.  v.  Davis 492 

Madden  v.  Tucker 184 

Magdalen  College  v.  Athi^l 260 

Magrahem  v.  Adams 288 

Mahon  v.  Brown 533,  534 

Makepeace  V.  Bancroft 125,  130 

Malcolmson  V.  O'Dea 31 

Maltby  V.  Dihel 479 

Mankato  V.  Willard 126 

Manley  V.  St.  Helen's  Co 102 

Mann  v.  Stephens 559 

Manter  v.  Picot 182 

Mariner  v.  Schul.te 61,  184 

Marsh  V.  Burt 110,  127,  179 

Marsh  V.  Stephenson 214 

Marshall  v.  Ulleswater  S.  Nav.  Co 38,    70 

Martin  v.  Goble 555 

Martin  v.  Headon 519,  557 

Martin  v.  Waddell 33,    34 

Martyn  v.  Knollys 358 

Mason  V.White 200 

Massy  v.  Goyder 354 

Mather  v.  Sharp 609 

Matson  v.  Calhoun 474 

Matts  V.  Hawkins H8,  352,  357 

Maye  v.  Tappan 334 

Mayhew  V.  Norton 230-232 

Maynard  v.  Esher 544 

Maynard  v.  Weeks 162 

Mayov.  Blount 130 

Mayor  v.  Eslava 46 

Meath,  Bishop  of,  v.  Winchester 310 

M  el vi  n  V.  Marshall 303 

Memphis,  etc.,  R.  R.  Co.  v.  Blakeney 502 

Menkius  v.  Blumenthal 336 

Menzies  v.  Broadalbane 96 

Merriman  v.  Russell 26C 

Metcalfe  v.  Beckwith 257,  259,  2V 


PAGE. 

Metcalfe  v.  Bcnthuysen 288 

Metropolitan  Ass.  v.  Patch 501 

Middleton  V.  Pritcliard 35,  43,  120 

Miller  V.  Cheney 121 

Miller  V    Faudye 324 

Miller  V.  Lapham 558 

Miller  v.  Warrington 272,  279,  280 

Millett  V.  Fowle 205 

Milligan  v.  Wekiuger 444 

Mills  V.  Catlin 123 

Millsv.  Holton 505 

Mincke  v.  Skinner 162 

Minor  v.  Delano 416 

Minot  V.  Curtis  330 

Misner  v.  Lighthall 456 

Missouri  v.  Iowa 241 

Missouri  v.  Kentucky 243 

Mobile,  etc.,  R.  R.  Co.  v.  Maloue 495 

Monmouth  Canal  Co.  v.  Hill 44 

Monongahela  Bridge  Co.  v.  Kirk 54 

Monro  v.  Tayne 269 

Montgomery  v.  Wilmington,  etc.,  R.  "R.  Co,  489 

Montgomery's  Lessee  v.  Dickey 304 

Moore  v.  Griffin 225,  231 

Moore  v.  Rauson 557 

Moore  v.  Sanborne 60 

Moore  v.  Sweet  346 

More  V.  Massiui 223 

Moreland  v.  Baker 102 

Morgan  V.King 63 

Morgan  v.  Reading 50,    57 

Morgan  v.  Scott ?5 

Morris  v.  Ld.  Berkeley's  Lessees 521 

Morrison  v.  Marquardt 549 

Morrison  v.  N.  Y.  &  N.  H.  R.  R.  Co 385 

Morse  v.  Boston  &  Maine  R.  R 416 

Morse  v.  Read 405 

Morss  v.  Jacobs 302 

Morss  V.  Salisbury 302 

Morton  v.  Moore 163 

Mosher  v.  Berry 198 

Mott  V.  Comrs.  of  Highways 392 

Moulton  V.  Libby 230 

Mulford  V.  Le  Franc 124 

Muller  V.  Lander 161 

MuUer  v.  Strieker 545 

Mumford  v.  Brown 510 

Mumford  v.  Whitney £26 

Munch  V.  N.  Y.  Central  R.  R.  Co 385 

Mundell  v.  Perry 338 

Munger  v.  Tonawanda  R.  R.  Co 375 

Mnnro  v.  Allaire 123 

Murchin  v.  Black 354,  531 

Murly  V.  McDermott 357 

Murrray  v.  Hall 357 

Murray  v.  S.  Carolina  R.  R.  Co  490 

Murry  v.  Sermon 92 

Myers  V.  Dodd 452 

Myers  v.  Gummel 533 


20 


INDEX  TO    CASES   CITED. 


N. 


Nnpierv.  Buhvinkle 546 

Kashville  &  C.  R.  R.  Co.  v.  Peacock 495 

Needham  V.  Judson 216 

Needham  v.  Pryor's  Lessee 283 

Nelson  v.  Stewart ^^ 

Newcastle  v.  Broxton 296,  310 

Newell  V.  Hill 358,  415 


Newball  v.  Ireson 


109 


New  Ipswich  Factory  v.  Batchelder 63 

Newman  v.  Foster 286 

Newton  v.  Eddy ^^ 

Newton  V.  Pryor 119,206 

Nilesv.  Patch 231 

Norris'  Appeal 252 

Norris  v.  Baker 328 

Norris  V.  Le  Neve 259,  266,  280 

Northern  Ind.  R.  R.  Co.  v.  Martin 4r)3 

Norway,  The,  v.  Jenson 237 

Noye  V.  Reed 352,  357 

O. 

Oat  V.  Middleton 443 

O'Banuon  v.  Louisville,  etc.,  R.  R.  Co 498 

O'Farrallv.  Simplot 468 

O'Hara  v.  Strang 260 

Ohio,  etc.,  R.  R.  Co.  v.  Buubaker 4.08 

Orendorf  v.  Steele 218 

Osborn  v.  Coward 286 

Otis  V.  Smith 1^4 

Overton  v.  Davisson 303 

Owen  V.  Bartholomew 285 


Paddock  v.  Pardee 205 

Page  V.  HoUingsworth 452 

Page  V.  Olcott .  •  •  408 

Painter  v.  Reece 442 

Paldeu  V.  Bastard 531 

Palmer  v.  Fletcher 528 

Palmer  v.  Sil verthorn 442,  443 

Palmer  v.  AVetmore 538 

Park  V.  Pratt 166 

Parker  v.  Foote 533,  534,  5.36,  551 

Parker  v.  Frarainghara 192 

Parker  v.  Rens.  &  Saratosa  R.  R.  Co 386 

Parker  v.  Smith 232,  553 

Parkhnrstv.  Smith 122 

Parks  V,  Loomls 213 

Pnmaby  v.  Lancaster  Canal  Co 102 

Parry  v.  Crandall 224 

Pur-onsv.  Miller 12:1 

Partridge  v.  Luce    225,  231 

Putrhln  V.  Dobbins 560 

Patrick  V.  Collorick 325 

Palt.-n  V.  Stltt 119,  120,  138 

PatiiTcuu  V.  Gelston 84 

P8tt<'r»on  V.  Tra»k 198 

Fatten  V.  Alexander 187 

Payne  V.  RogurB 606 


PAGE. 

Pearson  V.  Spencer 531 

Peasleev.  Gee 123 

Peckhamv.  Henderson 390 

People  V.  Brnse 236 

People  V.  Canal  Appraisers 62 

People  V.  Central  R.  R.  Co.  of  N.  J 242 

People  V.  Gutcbess •'3 

People  V.  Henderson 22t 

People  V.  Kerr 107 

People  V.  Law    107,  151 

People  V.  Williams 394 

Penn  v.  Lord  Baltimore,  255,  266,  269,  273,  279 

Penruddock's  Case 328 

Perkins  v.  Perkins 363 

Pernam  v.  Wood 338 

Perrin  v.  N.  Y.  Central  R.  R.  Co 144 

Perry  V.  Fitzhowe 326 

Perry  v.  Pratt 250,  265 

Pettit  V.  Shepard 152 

Petty  V.  Booth 123 

Peyton  V.  Ayres 121 

Peyton  V.  Mayor  of  Loudon 354 

Phelps  V.  Wait 389 

Phillipsv.  Bowers. .♦ 109,213 

Phillips  v.  Hudson 275,312 

Phillips  v.  Hunger 510 

Phillips  V.  Oyster 470 

Phinnoy  v.  Watts 71,181 

Pickard  v.  Collins 53 

Pickering  V.  Badd 327 

Pickering  v.  Kimpton 263 

Pickett  v.  Metropolitan  R.  Co 328 

Pierce  V.  Farmer 131,209 

Pierre  V.  Fcrnald 543 

Pipe  V.  Fnlcher 311 

Piper  v.  Richardson 228,  229 

Pitman  v.  Albany 247 

Pitts  V.  Gaw 203 

Pisley  V.  Clark 99,  100 

Plasterers'  Co.  v.  Parish  Clerks'  Co 524 

Plaxton  v.  Dare 309 

Plummer  V.  Beutham , 525 

Puler  V.  N.  Y.  Central  R.  R.  Co 383 

Pollard  V.  Hagan 33,    34 

Pollard  V.  Scott 311 

Polus  V.  Henstock  348,  349 

Pomf ret  v.  Ricrof  t 529 

Poole  V.  Fleeger 234 

Porter  v.  Aldrich 415 

Porter  v.  Sullivan 227-229 

Potter  V.  Parry 344 

Powell  V.  Salisbury 360 

Powers  V.  Silsby 301 

Powley  V.  Walker 507 

Pratt  V.  Woodward 163 

Prescott  V.  Hawkins 265 

Prescott  V.  Mudgett 400 

Preston  V.  Bowman —  119,  282 

Pride  v.  Sweet 286 

Pringle  v.  Warnliam KS 


IXDEX  TO    CASES   CITED. 


21 


PAGE. 

Proctor  V.  Pool 130 

Proprietors  of  Center  St.  Church  v.  Machias 

II.  Co  16T 

PuLTslej'  V.  Anderson 394 

Pyer  V.Carter 354 

Q. 

Queen  v.  Strand  Biet  Pub.  Works 104 

R. 

Raiford  V.  Miss.,  etc.,  R.  R.  Co 501 

Ralston  V.  Miller 2!)8 

Riin{,'ler  V.  McCreight 442 

Ratcliff  V.  Commonwealth 447 

Rayleyv.Best 280 

Ejiynor  v.  Timerson 119 

Redding's  Lessee  v.  McCubbin    804 

Reed  v.  Jackson 308 

Reed  V.  Langford 288 

Reed  V.  McCorvet 293 

Reedv.  Spicer 129 

Regina  v.  Bedfordshire 306 

Regina  v.  Board  of  Works 832 

Regiua  V.  Milton 307,  311 

Regina  v.  Mussou 39,  3;}2 

Regina  v.  Mytton 309 

Regina  v.  United  Kingdom  Tel.  Co Ill 

Regina  v.  Watson 338 

Rcidv.  Scheuck 28S 

Relyeav.  Beaver 323,  5.89 

Rienshaw  v.  Beau 555 

Rex  V.  Ellis 37 

Rexv.  Gee 39 

Rex  V.  Hermitage 350 

Rex  V.  Hordon-on-thc-Hill 526 

Rex  V.  Pagham  Comrs 96,    98 

Rexv.  Pappineau 327 

Rex  V.  Pedley 561 

Res  V.  Traffon 97,  100 

Rexv.  Watts 505 

Rexv.  Wharton 76 

Rexv.  White HI 

Res  V.  Yarboroiigh 81 

Rhode  Island  V.  Massachusetts 244 

Rhpdes  V.  Otis 55 

Rice  V.  Ruddiraan 65 

Rice  V.  Worcester 109,  110 

Richards  v.  Rose 631 

Richardson  V.  McDougall 369 

Richardson  v.  Milburn 446 

Richardson  v.  Miller 346 

Richardson  V.  Pond 542 

Rider  v.  Thompson 229,  2:« 

Right  V.  Raynard 360 

Ril)()n  V.  Hobart 562 

Riviere  v.  Bower 530 

Roberts  v.  Rose 327 

Robertson  v.  McNiel 254 

Robeson  v.  Lewis |^ 

Robinson  v.  Hodgson 259 


PAGE. 

Robinson  v.  White 221 

Rockwell  V.  Adams 287 

Rockwell  V.  Baldwin 159 

Rogers  V.  Sawin 542 

Rogers  v.  While 330 

Rohrer  v.  Rohrcr 442 

Roper  V.  Williams 560 

Rosewell  v.  Pryor 528,  561 

Ross  V.  Reddick 2:ifi 

Rous  V.  Barker 262 

Rowbotham  v.  Wilson 527 

Rowe  v.  Brenton  .   314 

Russellv.  Handy 469 

Russell  V.  Sheatou 505 

Russeirs  Admr.  v.  Malouey 333 

Rust  V.  Boston  Mill  Corp 228-230,232 

Rust  V.  Low 315,  346 

Rutherford  V.  Aikin 509 

Rutherford  v.  Tracy 157 

Ryan  v.  Rochester  &  S.  R.  R.  Co 363 

Ryder  v.  Bentham 566 

s. 

Sackville  v.  Mihvard 360 

Safkin  V.  Haskell 41 

Safretv.  Hartman 187 

Salisbury  v.  Andrews 176 

Salisbury  v.  Great  N.  R.  Co 114 

Salmon  V.  Benesley 328 

Salter's  Co.  v.  Jay 525 

Saltonstall  v.  Long  Wharf 226,  2:31 

Sanborn  v.  Clough 185 

Sanborn  v.  Fellows  408 

Sanford  v.  Haskell    403 

Sanset  v.  Shepherd 86 

Saxton  V.  Bacon 414 

Sayer  v.  Pierce 272 

Schnare  v.  Gehmau 470 

Schools  V.  Risley 87,229 

Schoonmaker  v.  Davis 151 

Schreiber  v.  Crew 56" 

Schurmeier  v.  St.  Paul,  etc.,  R.  R.  Co 61 

Scoons  V.  Morrill 103 

Scott  V.  Dickinson 417 

Scratton  V.  Brown 40 

Seaman  v.  Smith 65 

Seamour  V.  McGinnis 194 

Searby  v.  Totenham  R.  Co  352 

Sears  V.  Charlemout 417 

Seaward  V.  Malotte 132 

Seeley  v.  Peters 456 

Scllick  V.  Adams ^54 

Seneca  Indians  V.  Knight 127,  148 

Seneca  V.  Knight ^-"^ 

ShadwcUv.  Hutchinson 525,  561 

Sharp  V.  Curtis 429 

Shaw  V.  Griffin 415 

Shcpard  V.  B.,  N.  Y.  &  E.  R.  R.  Co... .  382,  368 

Shepherd  v.  Hoes 3.2 

Shepherd  v.  Thompson  301 


22 


INDEX  TO    CASES   CITED. 


PAGE. 

Sherman  v.  McKeon 107,  126,  137 

Shone  V.  London  City  R.  Co 567 

Shriver  v.  Stephens 443 

Shrunk  v.  Schuylkill  Co K 

Shuts  V.  Baldwin's  Lessee 171 

Sibley  V.  Howen 109 

Sikes  V.  Chicago,  etc.,  R.  R.  Co 464 

Simmons  V.  Norton 507 

Simm's  Lessee  v.  Dickson 283 

Simper  V.  Foley ••  558 

Simpson  V.  Dendy 104,  115,  180,  317 

Sinjjlcton  v.  Williamson 300 

Skinner  v.  Wilder 321 

Smart  V.  Council  of  Dundee 95 

Smith  V.  Carroll 472 

Smith  V.  Causey 495 

Smith  V.  Chapman 207,  .301 

Smith  V.  Chatham 119 

Smith  V.  Devon 518 

Smith  V.  Hamilton 255 

Smith  V.  Hosmer 409 

Smith  V.  Howden 113 

Smith  V.  Keurick 325 

Smith  V.  Levinus ^ 

Smith  V.  Martin 176,  .303 

Smith  V.Maryland 33 

Smith  V.  Slocumb 181 

Smith  V.  Stair 95 

Smith  V.  State .  161 

Smith  V.  St.  Louis 86 

Smith  V.  Strong 128 

Solomon  v.  Vintners'  Co 354 

Somerset  v.  Fogwell 37 

Southwell  V.  Thompson 268 

Sparhawk  v.  Bullard 42,  228,  229 

Sparhawk  v.  Twitchell 415 

Sparks  V.  Hess 170,  184 

Sparrow  v.  Kingman 218 

Spaulding  v.  Warren 3-37 

Spear  V.  Coate   304,  305 

Si)eer  v.  Crawler 257,  259,  271 

Spiller  V.  Scribner 172 

Sproiil  V.  Foye 162 

Squire  V.  Campbell 517 

Siwus  V.  Hudson  Kivcr  R.  R.  Co 383 

Stackpoole  V.  Healy 374 

StatTi)rd  V.  IngorsoU 367 

Stalkup  V.  Bradley 500 

Staiibcry  v.  Nelson 2:36 

Stanford  v.  Manikin 169 

Stanford  V.  Taylor 208 

Sinnliy  v.  White 316 

Star  V.  Uokesby 341,  313 

Stark  V.  Coffin 127 

Slate  V.  Allen 488 

Slate  V.  Boll 488 

State  V.  Brown 221 

Stall?  V.  Clements 11.3 

State  V.  Dunwell 2:16 

Statu  V.  Gilmanton 64,    70 


PAGE. 

State  V.  Graham 488 

State  V.  Headrick 488 

State  V.  Jersey  City 46 

State  V.  Lamb 488 

State  V.  Perry 487 

State  V.  Tootle 2.36 

State  V.  Williams 488 

Stedman  v.  Smith 357 

Steel  V.  Pickett 115 

Stephens  v.  Shriver 442 

Stevens  v.  Patterson,  etc.,  R.  R.  Co 48 

St.  Louis,  etc.,  R.  R.  Co.  v.  Linden    458 

St.  Luke's  V.  St.  Leonard's 259,  275 

StoU  V.  StoU 558 

Stone  v.  Augusta 184 

Stone  V.  Boston  Steel  &  Iron  Co 227 

Stone  v.  Clark 124 

Stoner  v.  Shugart 457 

Storer  V.  Freeman a4,    35,    41,    230,231 

Story  V.  Odin 5:J9 

Stranger,  The,  v.  Rowe 37 

Stroud  V.  Springfield 301,  303 

Stuart  V.  Clark 44,    56 

&tv.art  V.  Coulter 266 

Studwell  V.  Ritch 433 

Sturgeon's  Lessee  v.  Waugh 304 

Sturtevent  V.  Merrill 404 

Suffield  V.  Brown 354,530 

Surget  V.  Settle 286 

Suttonv.  Cole. 330 

Suydam  V.  Moore 389 

Swanborongh  v.  Coventry 530,  541 

Sweet  V.  Holland 103 

Swick  V.  Sears 123 


Talbot  V.  Blacklege 469 

Talcott  V.  Stillman 431 

Talmadge  v.  Rens.  &  Sar.  R.  R.  Co 387 

Tapling  v.  Jones 523,  557 

Taylor  v.  Davey 310,  3.33 

Taylor  v.  Parry 115 

Taylor  v.  Whitehead 117,  50!» 

Tenant  v.  Goldwin 529 

Tenant  v.  Hampleton 285 

Tennyv.  Beard 190 

Terrett  v.  N.  Y.  &  B.  S.  S.  &  L.  Co 153 

Terry  v.  Chandler 256 

Terry  v.  N.  Y.  Central  R.  R.  Co 364,  387 

Tewkesbury  v.  Bucklin 409 

Teynham  v.  Herbert 272 

Thayer  v.  Arnold 342,345,  415 

Thayer  v-.  Bacon 3-35 

Thomas  v.  Jenkins 305 

Thomas  v.  Thomas .349 

Thompson  v.  N.  Y.  &  Harlem  R.  R.  Co. . . .  388 

Thompson  v.  Wilcox 110 

Thorndike  v.  Richards 130 

Thornton  v.  Foss 228,  231 

Toddv.Flight 505 


INDEX  TO    CASES   CITED. 


PAGE. 

Toledo,  etc.,  R.  R.  Co.  v.  Arnold 458 

Toledo,  etc.,  K.  R.  Co.  v.  Cole    458 

Tomklns  V.  Vintroiix lt)2 

Tonawauda  R.  R.  Co.  v.  Muuger Zli 

Towuseud  v.  Hoy  t 282,  290,  293 

Townsend  v.  McDonald 63 

Tracy  v.  Troy  &  B.  R.  R.  Co 383,  386 

Treat  V.  Chipman 230 

Treat  V.  Strickland 303 

Trice  v.  Hannibal,  etc.,  R.  R.  Co 474 

Trothe  v.  Simpson 357 

Trown  v.  Chadwick 353 

Truscott  V.  Merchant  T.  Co 525 

Tubbs  V.  Gatewood 123 

Tucker  v.  Meeks 129 

Tucker  v.  Needinan 356 

Tuckerv.  Riiukin 392 

Tulk  V.  Moxhay 559 

Tupper  V.  Clark 413 

Turner  v.  Spooner 657 

Tyler  v.  Hammond 109,  174 

Tyrrwhitt  v.  Wynne 115 

u. 

Underbill  v.  N.  Y.  &  Harlem  R.  R.  Co 384 

Union  Canal  Co.  V.  Landis 54 

Union  Pacific  R.  R.  Co.  v.  Rollins  479 

United  States  v.  Appleton 550 


Valentine  V.  Piper 229,  231 

Van  Bergen  v.  Van  Bergen 563 

Vance  v.  Fore 130-132 

Van  Deuscn  v.  Young 509 

Vandewerker  v.  The  People  — 236 

Van  Olinda  v.  Lathrop 109 

VanSlyck  V.  Suell 370 

Van  Wyck  v.  Wright 132 

V'arick  V.  Smith 153 

Vasquez  v.  Richardson 210 

Venango,  etc.,  Oil  Co.  V.  Lewis 287 

Vicksburgh  &  J.  R.  R.  Co.  v.  Patten 502 

Virginia  v.  West  Virginia 243 

Vivian  V.  Carapron 512 

Vorhees  v.  De  Meyer 337 

Vorhees  v.  Martin 394 

Voce  V.  Bradstreet 195 

Vowles  V.  Miller 351 

Voyer  V.  Voyer 358 

w. 

Wagner  v.  Bissell 469 

Wakev.  Congers 251,  2.08 

Wakeman  v.  West 312 

Walcott  V.  Robbins 276 

Walker  v.  Board  of  Public  Works 60 

Walker  v.  Boston  &  M.  R.  R 228,  229 

Walker  V.  Cay  wood ^^392 

Walker  v.  Chichester 34^  490 


PAGE. 

Walker  V.  Pearson, 210 

Walker  V.  Shepardson 49,    61 

Walkerv.  Sherman 397 

Walker  v.  Watrous 493 

Wallace  v.  Fee 146 

Wallace  v.  Maxwell 338 

Walsh  V.  Hill 229 

Walsh  V.  Ringer 189 

Walters  v.  Pfeil a55 

Walton  V.  Tift 219 

Wardv.  Ncal 546 

Warner  v.  Southworth 117,  352,  426 

Warren  v.  Blake 165 

Warren  v.  Sabin 363 

Waterman  v.  Johnson 71,  125,  2S5 

Waterman  v.  Sohn 318,  358 

Waterpark  V.  Fennell 295 

Weatherby  v.  Ross 557 

Wcjiver  V.  Robinett 337 

Webber  v.  Clossin 404 

Webber  v.  Eastern  R.  R 109,  125 

Weld  V.  Hornby 124 

Wellfleet  V.  Truro 168 

Wellsv.  Beal 479 

Wells  V.  Howell 360,  372 

Wells  V.  Jackson,  etc.,  Co 292 

Wells  V.  Ody 553.  561 

Western  V.  McDermott 344 

Western  v.  Sampson 230 

West  Hartford  Ecc.  Soc.  v.  First  Baptist 

Church,  West  Hartford 248 

West  Roxbury  v.  Stoddard 70,  71,    73 

Wetherbee  v.  Dunn 277 

Wetmore  v.  Atlantic  W.  Lead  Co 86 

Wetmorev.  Law 127,150 

Wetmore  V.  Story 131 

Wetmore  v.  Tracy 391 

Whalen  v.  Blackburn 464 

Whaley  v.  Dawson 2t>l 

Wheeler  V.  Howe 358 

Wheeler  V.  Stone 229,  230 

White  V.  Bass 530 

White  V.  Godfrey 110,  163,  214 

White  V.  Hill 114 

White  V.  Scott 380 

White  V.  Warner 512 

White  V.  Williams 156 

Whitfield  V.  Berdit 507 

Whitfield  V.  Brodenhammer 487 

Whitfield  V.  Weedon 507 

Whitman  v.  Gibson 559 

Whitney  v.  Olney 1"0,  174 

Whitney  v.  Smith 286 

Whitstable,  Free  Fishers  of,  v.  Foreman. .     39 

Whitstal)le,  Free  Fishers  of,  v.  Gann 39 

Whittier  v.  Johnson 407 

Wigfordv.  Gill 353 

Wiggin  V.  Baptist  Society 410 

Wild  V.  Holt 115 

Wilder  v.  Wilder 41£ 


24 


INDEX  TO    CASES   CITED. 


PAGE. 

SVildman  v.  Taylor 131 

Wilkinson  V.  Abbott 312 

Williams  v.  Mich.  Central  R.  R.  Co 451 

Williams  V.  Safford 116,117 

Willis  V.  Parkingon 2U3,  279 

Willoughby  v.  Carlton 395 

Wills  V  Walters 343,  496,  497 

Wilson  V.  Forbes 45,    56 

Wilson  V.  Inloes 202 

Wilson  V.  Townsend 553,  565 

Wilson  V.  Tronp 122 

Wilson  V.  Wilmington  &  M.  R.  R.  Co 490 

Wiltshire  V.  Sidford 353,  355 

Winchester  V.  Hees 211 

Winnipisseogee,  etc.,  Co.  v.  Perley 124 

Winslow  V.  King 113,  182 

"Winsldw  V.  Patten 225 

Winsmorc  v.  Greenbank 328 

Winterbottom  V.  Lord  Derby 328 

Winters  V.  Jacobs 470 

Winth  V.  Carpenter 262 

Wise  V.  ■Wheeler 171,  m"*, 

Wishart  V.  Wyllie fls 


PAGE. 

Wiswell  V.  Marston 164 

Witt  V.  Jefcoat 55 

Wolfe  V.  Scarborough 308 

Wood  V.  Jones 194 

Wood  V.  Kelly 72,  221 

Wood  V.  Leadbetter 526 

Woodman  v.  Lane. .  130 

Woodman  V.  Smith 215 

Wooster  v.  Butler 300 

Wright  V.  Evans 564 

Wright  V.  Howard 49 

Wright  V.  Wright  432,  433,  437 

Wuesthoff  V.  Seymour 158 

Wyatt  V.  Great  W.  R 326 

Wyatt  V.  Harrison 351 

Y. 

Yates  V.  Harris 312 

Yates  V.  Jack 525,  555,  556 

Yorborough  v.  Abernathy 338 

York  V.  Davis 408 

York,  Mayor  of,  v.  Pilkington 272 

Young  V.  Sutton 381 


The    'Law  of  Boundaries,   Fences   and 
Windo^v   Lights. 


P*  A  R,  T     I. 


OF  THE  LAW  OF  BOUNDARIES. 


CHAPTER  I. 

DEFINITION   OF   THE   TERM    BOUNDARY  —  PKELIMINAKY  OBSERVATIONS 

IN  RESPECT   TO  THE  SUBJECT  OF   BOUNDARY GENERAL  PRINCIPLES 

APPLICABLE   TO    THE   DESCRIPTION    OF   BOUNDARIES. 

The  word  boundary,  as  it  will  be  used  in  the  following  pages, 
signifies  the  line  which  fixes  the  limits  of  any  specified  territory,  or 
piece  or  parcel  of  land  or  real  estate,  or  it  may  be  defined  to  be  the 
ascertained  limits  of  adjoining  lands  owned  by  difterent  proprie- 
tors.    The  meaning  of  the  term  as  explained  in  Biirrill's  Law  Dic- 
tionary is,  "  a  line  or  object  indicating  the  limit  or  furthest  extent 
of  a  tract  of  land  or  territory.     A  separating  or  dividing  line 
between  countries,  States,  districts  of  territory,  or  tracts  of  land, 
consisting  sometimes  wholly  of  one  or  more  natural  objects,  as  a 
river,  a  chain  of  lakes,  etc. ;  sometimes  of  artificial  erections,  as  a 
stone  wall,  fence,  and  the  like ;  sometimes  of  an  imaginary  line 
drawn  from  one  principal  terminus  to  another,  and  indicated  along 
its  course  by  prominent  natural  or  artificial  objects  standing  or 
erected  upon  it  at  intervals,  and  sometimes  of  all  these  in  combina- 
tion."    After  citing  authorities,  the  definition  is  farther  continued  : 
"  A  line  or  connected  series  of  lines  going  around  a  territory  or 
tract  of  land  and  inclosing  it  on  all  sides.     A  tract  or  country  may 
be  said  to  be  bounded  by  a  single  line  running  in  various  direc- 
tions from  one  point  to  another,  so  as  to  surround  it,  but  it  is  more 
common  to  use  the  plural  loundaries  as  descriptive  of  a  series  of 
lines  of  various  lengths,  traced  out  either  by  natural  objects  or  by 
courses  and  distances,  or  by  both,  running  in  various  directions 
from  one  point  to  another;  &\\d\ j^oints  (sometimes  called  in  sur- 
veys corners,  and   anciently  hutts)  being  usually   designated  by 
some  conspicuous  object,  as  a  rock,  a  tree,  a  stake,  a   heap   ot 
stones,    etc."    (1   BarriWs  Law   Dictionarij,   title    Boundary). 
Obviously,    the   line  which  marks    the  confines    or  division  of 
two  contiguous  or  adjacent  estates  is  the  boundary  of  such  adjoin- 
ing estates. 

A  boundary  may  be  known  by  taking  a  line  between,  two  fixed 
points  or  objects,  or  it  majjlfoe  marked  by  stakes  erected  at  inter 


28  -^-i^'   OF  BOUNDARIES. 

vals,  and  at  the  discretion  of  any  of  the  proprietors  may  be  perma- 
nently distingnished  or  fenced  by  a  wall  or  a  chain,  according  to  the 
nature  of  the  soil.  The  word  fence  is  properly  applicable  to  the 
inclosnre  of  lands  by  walls,  chains  or  hedges,  for  the  purpose  of 
agricultural  inijirovement,  or  of  preventing  trespass  (1  Furlong's 
Landlord  and  Tenant^  69G).  To  render  a  thing  capable  of  being 
appropriated,  it  is  not  strictl}^  necessary  that  it  should  be  inclosed, 
or  capable  of  being  restrained  within  artificial  bounds,  or  such  as 
are  different  from  its  own  existence;  it  is  sufhcient  if  the  compass 
and  extent  of  it  can  be  determined  {Sohidtes  on  Aquatic  Rights, 
118). 

As  a  general  rule,  the  boundar}^  between  the  lands  of  adjoining 
owners  is  to  be  settled  by  the  conveyances  under  which  they  hold. 
Exceptions  exist  in  some  cases  of  practical  location  and  the  like, 
but  ordinarily  resort  must  be  had  to  the  written  or  documentary 
evidence  of  the  title.  And  here  it  may  be  observed  that  words 
in  an  instrument  of  grant,  as  elsewhere,  are  to  be  taken  in  the 
sense  which  the  common  usage  of  mankind  has  applied  to  them  in 
reference  to  the  context  in  which  they  are  found.  For  example,  if 
lands  granted  are  described  as  bounded  by  a  house,  no  one  would 
naturally  suppose  that  the  house  was  included  in  the  grant ;  but  if 
the  land  granted  is  described  as  bounded  by  a  highway,  it  would 
be  equally  unnatural  to  suppose  that  the  grantor  designed  to 
reserve  to  himself  the  right  to  the  soil  ad  medium  filmn,  for  the 
simple  reason  that  in  a  majority  of  cases  the  fee  of  the  land  cov- 
ered by  the  road  would  be  of  no  possible  use  to  one  having  no 
interest  in  the  adjacent  soil.  The  rule  upon  this  subject  has  been 
thus  judicially  stated:  "  Whenever  land  is  described  as  bounded 
by  other  land,  or  by  a  building  or  structure,  the  name  of  which, 
according  to  its  legal  and  ordinary  meaning,  includes  the  title  in 
the  land  of  which  it  has  been  made  a  part,  as  a  house,  a  mill,  a 
whaif,  or  the  like,  the  side  of  the  land  or  structure  referred  to 
as  a  boundary  is  the  limit  of  the  grant;  but  when  the  boundary 
line  is  simply  by  an  object,  whether  natural  or  artificial,  the  name 
of  which  is  used  in  ordinary  speech  as  defining  a  boundary,  and 
not  as  describing  a  title  in  fee,  and  which  does  not  in  its  descrip- 
tion or  nature  include  the  earth  as  far  down  as  the  grantor  owns, 
and  yet  which  has  width,  as  in  the  case  of  a  way,  a  river,  a  ditch, 
a  wail,  a  fence,  a  tree,  or  a  stake  and  stones,  then  the  center  of  the 
thing  so  running  over  or  standing  on  the  land  is  the  boundary  oi 


RULES   OF  CONSTRUCTION.  20 

the  lot  granted"  {The  City  of  Boston  v.  Richardson,  13  Allen's 
jR.,  14:4:,  154).  This  is  the  general  rale  of  construction,  and  it  was 
well  illustrated  in  the  elaborately  considered  case  in  Massachusetts 
in  which  it  is  thus  stated. 

Another  general  rule  of  construction  is,  that  definite  boundariea 
given  in  a  deed  will  limit  the  generality  of  a  term  previously  used, 
which,  if  unexplained,  would  have  included  a  greater  quantity  of 
land.  And  when  the  boundaries  mentioned  in  a  deed  of  convey- 
ance are  inconsistent  with  each  other,  those  are  to  be  retained 
which  best  subserve  the  prevailing  design  manifested  on  the  face 
of  the  deed ;  and  the  least  uncertainty  must  yield  to  the  greater 
certainty  in  the  description.  Again,  every  call  in  the  description 
of  the  premises  in  a  deed  must  be  answered  if  it  can  be  done ;  and 
the  intention  of  the  parties  is  to  be  sought  by  looking  at  the  whole, 
and  none  is  to  be  rejected  if  all  the  parts  can  stand  consistently 
together.  If  there  be  a  precise  and  perfect  description,  showing 
that  the  parties  actually  located  the  land  upon  the  earth,  and  ano- 
ther, general  in  its  terms,  and  they  cannot  be  reconciled  to  eacli 
other,  the  latter  should  yield  to  the  former.  But  when  there  is 
inaccuracy  or  deficiency  in  the  particular  description,  the  one 
which  is  general  often  becomes  important,  and  renders  that  clear 
which,  without  it,  would  be  obscure  and  uncertain.  These  general 
principles  are  well  understood,  and  have  been  so  frequently  recog- 
nized by  the  courts,  that  the  citation  of  authority  need  not  be  made. 

In  locating  lands  the  following  other  general  rules  are  resorted 
to,  and  usually  in  the  following  order :  First,  natural  boundaries. 
Second,  artificial  marks.  Third,  adjacent  boundaries.  Fourth, 
course  and  distance.  Neither  rule,  however,  occupies  an  inflexible 
position;  for,. when  it  is  plain  that  there  is  a  mistake,  an  inferior 
means  of  location  may  control  a  higher.  When  land  is  located, 
the  line  is  to  be  run  according  to  the  boundary,  and  the  boundary 
is  to  be  observed,  though  the  courses  are  different.  But  when 
there  is  some  doubt  about  the  natural  boundaries,  and  this  doubt 
can  certainly  be  removed  by  artificial  marks,  the  latter  will  have 
effect,  although  of  inferior  degree.  And  where  no  monuments  are 
named  in  a  grant,  and  none  are  intended  to  be  afterward  desig- 
nated as  evidence  of  the  extent  of  it,  the  distance  stated  therein 
must  govern  the  location. 

In  accordance  with  the  principle  of  construction  that  what  ia 
most  material  and  most  cerifin  in  a  descrij3tion  shall  prevail  ovei 


gQ  LAW  OF  BOUNDARIES. 

that  which  is  less  material  and  less  certain,  it  is  a  general  rule 
that  course  and  distance  must  yield  to  natural  and  ascertained 
objects ;  as  a  river,  a  stream,  a  spring  or  a  marked  tree ;  or,  in 
other  words,  that  com-se  and  distance  must  yield  to  natural,  visible 
and  ascertained  objects.  The  rule,  however,  that  monuments  con- 
trol in  boundaries  is  not  inflexible ;  and  in  a  case  where  no  mis- 
take can  reasonably  be  supposed  in  the  courses  and  distances,  the 
reason  of  the  rule  will  fail,  and  the  rule  itself  will  not  be  applied. 
As  an  illustration,  the  Supreme  Judicial  Court  of  Massachusetts 
long  since  decided  that  a  line  of  "  one  foot  and  three  inches,"  in 
describing  land  on  one  of  the  main  streets  of  Boston,  should  con- 
trol the  boundary  mentioned  {Davis  v.  Rainsford,  17  Mass.  B., 
207).  But  where  the  boundaries  of  land  are  fixed,  known  and 
unquestionable  monuments,  although  neither  courses  nor  distances 
nor  the  computed  contents  correspond,  the  monuments  must 
govern.  The  authorities  upon  this  point  are  very  numerous,  and 
they  are  so  uniform  that  they  need  not  be  cited.  Preference  is 
said  to  be  given  to  monuments  because  they  furnish  greater  cer- 
tainty of  description.  And,  also,  because  such  preference  is  most 
beneficial  to  the  grantee  in  giving  him  more  land.  These  monu- 
ments may  be  either  natural  or  artificial  objects ;  but  natural 
objects  are  preferred  over  artificial  ones,  simply  because  they  are 
reo-arded,  as  a  rule,  to  be  more  lasting  and  permanent. 

A  false  or  mistaken  particular  in  a  conveyance  may  be  rejected, 
where  there  are  definite  and  certain  particulars,  suflicient  to  locate 
the  grant,  But  prima  facie,  a  fixed  visible  monument  can  never 
be  rejected  as  fiilse  or  mistaken,  in  favor  of  mere  course  and  dis- 
tance, as  the  starting  point,  when  there  is  nothing  else  in  the 
terms  of  the  grant  to  control  and  override  the  fixed  and  visible 
call.  The  general  rule  that  courses  and  distances  must  yield  to 
natural  or  artificial  monuments  or  objects  is  upon  the  legal  pre- 
sumption that  all  grants  and  conveyances  are  made  with  reference 
to  an  actual  view  of  the  premises  by  the  parties.  And  where  the 
grammatical  sense  of  the  words  is  not  in  harmony  with  the 
obvious  intention  of  the  parties,  one  word  will  be  substituted  for 
another  for  tlie  purpose  of  giving  effect  to  such  intention.  And 
still  another  general  proposition  may  be  stated  in  connection  with 
this  stibject,  which  is,  that  the  description  of  boundaries  in  a  deed 
■  is  to  be  taken  most  strongly  against  the  grantor.  This  is  a  well 
settled  rule,  and  is  uniformly  applied. 


PROPERTY  ON  THE  SEASHORE.  31 

These   are  the   only  observations  relating   to   the  question  of 
boundary  of  a  preliminary  nature  which  it  is  important  to  make 
The    uli  of  construction  as  applied  to  different  conveyances,  and 
Itspecies  of  evidence  proper  in  cases  of  boundary,  will  be  more 
elaborately  considered  in  subsequent  chapters. 


CHAPTER  II. 


rru..  T^TPHTS  or  PROPERTY  ON  THE  SEA-SHORE  —  HOW  THE  SAME  MAY 
L  iXlED  bTgRANTS  or  PRESCRIP-nONS  -THE  LAW  OF  BOUNDARY 
WH  REFERENCE  TO  THESE  RIGHTS -WHAT  IS  THE  BOUNDARY  OE 
PRIVATE  PROPERTY  BORDERING  ON  THE  SEA. 

In  order  to  be  able  to  determine  the  boundary  of  lands  upon 
the  sea-shore  and  other  navigable  waters,  it  is  requisite  to  under- 
stand the  law  in  respect  to  the  soil  under  these  waters.     By  the 
law  of  nature,  the  air,  running  water,  the  sea,  and  consequently 
the  shores  of  the  sea,  are  common  to  all  mankind.     No  one,  there- 
fore, is  forbidden  to  approach  the  sea-shore,  provided  he  i-espects 
habitations,  monu.nents  and  buildings,  which  are  not,  like  the  sea 
subject  only  to  the  law  of  nations.     Tins  k  the  rule  of    he  civil 
law   upon  the    subject     {Institutes,    lih.  11,  tit.   i,  p.  1).     And 
by  the  same  authority,  it  appears  that  the  use  of  t^ie  sea-shore  is 
as  public,  and  as  much  subject  exclusively  to  the  law  o    nations 
as  tlie  sea  itself,  so  that  any  person  would  seem  to  be  at  liberty  to 
place  on  it  a  cottage  to  which  he  may  retreat,  or  to  dry  his  _ne  s 
there,  and  haul  them  from  the  sea ;  for  the  shores  may  be  said  to 
be  the  property  of  no  man,  but  are  subject  to  the  same  law  as  the 
sea  itself  and  the  land  or  ground  beneatli  it.     That  is  to  say,  this 
is  the  rule  laid  down  in  the  Institutes     {Instit.,  lih.  11,  tit.  \,p-  5). 
The  law  of  England  upon  this  subject  differs  somewhat  trom 
the  civil  law.     By  the  former,  the  soil  of  the  sea,  of  estuaries  and 
of  navigable  rivers  was  originally  in  the  crown,  and  the  law  is  th? 
same  now,  except  in  those  cases  where  it  can  be  proved  to  have 
been   transferred   to   a  subject     {Hale    de  Jure  Maris,  12    2o ; 
Malcolmson  v.  O'Dea,  10  House  of  Lords  Cases,  593).     But  the 
rule  in  Scotland  is  different.     There,  the  sea-shore  is^  not  as  m 
England,  held  to  be  property  reserved  to  the  sovereign,  but  is 
presumed  to  be  granted  ^  part  and  pertinent  of  the  adjacent 


32  LAW   OF   BOUNDARIES. 

land,  under  the  burthen  of  the  crown's  right,  as  trustee  for  the 
public  use     {Bell  on  Law  of  Scotland,  251). 

The  law  of  the  American  States  upon  this  subject  is  the  same 
as  that  in  England.  That  is  to  say,  by  our  law,  whatever  soil 
below  low-water  mark  is  the  subject  of  exclusive  propriety  and 
ownership  belongs  to  the  State  on  whose  maritime  border,  and 
within  whose  territory  it  lies,  subject  to  any  lawful  grants  of  that 
soil  by  the  State,  or  the  sovereign  power  which  governed  its  terri- 
tory before  the  declaration  of  independence.  This  doctrine  was 
distinctly  declared  by  the  Supreme  Court  of  the  United  States  in 
a  case  decided  in  1842,  wherein  the  claim  was  for  lands  lying 
beneath  the  navigable  waters  of  the  Earitan  river  and  bay,  where 
the  tide  ebbs  and  flows,  and  the  principal  right  in  dispute  was  the 
property  in  the  oyster  fisheries  in  the  public  rivers  and  bays  of 
East  Xew  Jersey.  The  rules  of  the  common  law  were  elabor- 
ately examined  and  commented  upon,  and  the  remarks  of  Hale 
when  speaking  of  the  navigable  waters,  and  the  sea  on  the  coasts 
within  the  jurisdiction  of  the  British  crown,  were  referred  to  and 
approved,  wherein  it  is  said :  "  That  although  the  king  is  the 
owner  of  this  great  coast,  and,  as  a  consequent  of  his  propriety, 
hath  the  primary  rights  of  fishing  in  the  sea  and  creeks,  and  arms 
thereof,  yet  the  common  people  of  England  have  regularly  a  lib- 
erty of  fishing  in  the  sea,  or  creeks,  or  arms  thereof,  as  a  public 
common  of  piscarry,  and  may  not,  without  injury  to  their  rights, 
be  restrained  of  it,  unless  in  such  places,  creeks  or  navigable 
rivers,  where  either  the  king  or  some  particular  subject  hath 
gained  a  propriety  exclusive  of  that  common  liberty"  {Hale's 
Treatise  de  Jure  Maris,  Ilargrave's  Laio  Tracts,  11).  This 
principle  stated  by  Hale  is  not  questioned  by  any  English  writer 
upon  the  subject.  But  the  question  as  to  the  power  of  the  crown 
since  Magna  Ciiarta  to  grant  to  a  subject  a  portion  of  the  soil 
covered  by  the  navigable  waters  of  the  kingdom,  so  as  to  give 
him  an  immediate  and  exclusive  right  of  fishery  within  the  limits 
of  Iiis  grant,  is  not  entirely  free  from  doubt,  although  Chief  Jus- 
tice Taney,  who  delivered  the  prevailing  opinion  of  the  court 
in  tlie  case  under  consideration,  thought  the  question  must  be 
regarded  as  settled  in  England  against  the  right  of  the  crown  since 
Magna  Cliarta  to  make  such  a  grant.  The  point,  however,  did 
not  arise  in  the  case,  and  the  learned  chief  justice  remarked  : 
"  And  wc  the  more  willingly  forbear  to  express  an  opinion  on  this 


PROPERTY   OX   THE   SEA-SHORE.  33 

Bul)ject,  because  it  has  ceased  to  be  a  matter  of  much  interest  in 
the  United  States.  For  when  the  Revobition  took  phice,  the 
people  of  each  State  became  themselves  sovereign  ;  and  in  that 
character  held  the  absolute  rio-ht  to  all  tlieir  navigable  waters  and 
the  soils  under  them  for  their  own  common  use,  subject  only  to 
the  rights  since  accorded  b\'  the  constitution  to  the  general  gov- 
ernment"  (Jlarthi  V.  Waddell,  16  Peters'  i?.,  367,  410).  The 
court  seem  to  have  adopted  the  doctrine  of  a  case  previously 
decided  by  the  Supreme  Court  of  New  Jersey,  in  which  it  was 
held  that  navigable  rivers,  where  the  tide  ebbs  and  flows,  and  the 
ports,  bays  and  coasts  of  the  sea,  including  both  the  waters  and 
the  land  under  the  water,  are  common  to  the  people  of  New 
Jersey  {Arnold  v.  2Iunday,  1  IIalsted''s  B.,  1).  And  the  same 
general  doctrine  has  been  subsequently  affirmed  by  the  Supreme 
Court  of  the  United  States.  It  was  held  in  1845,  that  the  shores 
of  navigable  waters  and  the  soils  under  them  were  not  granted  by 
the  Constitution  of  the  United  States,  but  were  reserved  to  the 
States  respectively  ;  and  that  the  new  States  have  the  same  rights, 
jurisdiction  and  sovereignty  over  this  subject  as  the  original 
States  {Pollard  v.  Tlagan^  3  Iloward^s  P.,  212).  And  in  a 
more  recent  case  the  same  court  held  that  whatever  soil  below 
low-water  mark  is  subject  to  exclusive  ownership,  belongs  to  the 
State  within  whose  limits  it  lies ;  and  that  the  State  may  make 
regulations  concerning  its  use  and  concerning  any  fishei'ies  upon  it 
{S/'iit/i  V.  Maryland.,  18  IIoio.  P.,  71).  It  is,  therefore,  well 
settled,  that  the  sea  and  its  arms  ai-e  peculiarly  and  pre-emiently 
in  the  State,  in  respect  to  their  uses;  all  of  which,  at  common 
law,  are  public,  and  they  are  held  by  the  sovereign  power  for  the 
public  benefit,  that  is  to  say,  navigation,  fishing,  the  moving  of 
vessels,  which  is  subject  to  the  jus  preventionis  {  Vide  Atujell 
on  Tide-waters,  158). 

The  rule  which  governs  in  respect  to  the  sea  and  the  soil  under- 
it  applies  also  to  the  shore.  AVhat  constitutes  the  shore  is  dif- 
ferent under  different  systems  of  law.  By  the  civil  law,  the  shore' 
extends  as  fjir  as  the  greatest  winter  flood  runs  up.  But  this  is 
not  the  doctrine  of  the  common  law  upon  the  subject.  By  that,, 
the  shore  is  that  portion  of  the  land  adjacent  to  the  sea  that  is 
between  ordinary  high-water  and  low-water  mark,  and  which  iS' 
alternately  co^-ercd  and  left  dry  by  the  ordinary  flux  and  reflux  of 
.he  tides  (  Vide  Hale  de  J^fte  Marisy  12  ;  Hall  on  Sea  shore,  8  ;. 
5 


34  LAW  OF  BOUNDABIES. 

Blundell  V.  Catterall,  5  Barn.  c6  Aid.  It,  292  ;  Earveij  v.  Mayor 
of  Lyme  Regis,  4  L.  R.,  Exc/i.,  260). 

The  line  of  deiiiarkation  between  the  sea-shore  and  the  land  of 
the  adjoining  proprietor  above  is  the  line  of  the  medium  high 
tide  between  the  springs  and  the  neaps.  This  was  so  decided  by 
the  High  Court  of  Chancery  of  England  some  twenty  years  ago, 
after  much  discussion,  in  a  case  in  which  Lord  Chancellor  Cran- 
wortli  was  assisted  by  Mr.  Justice  Maule  and  Mr.  Baron  Alderson. 
His  lordship,  in  rendering  his  opinion,  said :  "  The  principle 
which  gives  the  shore  to  the  crown  is,  that  it  is  land  not  capable 
of  ordinary  cultivation  or  occupation,  and  so  is  in  the  nature  of 
unappropriated  soil.  Lord  Hale  gives,  as  his  reason  for  thinking 
that  lands  only  covered  by  the  high  spring  tides  do  not  belong  to 
the  crown,  that  such  lands  are,  for  the  most  part,  dry  and  manior- 
able ;  and,  taking  this  passage  as  the  only  authority  at  all  capa- 
ble of  guiding  us,  the  reasonable  conclusion  is  that  the  crown's 
right  is  limited  to  land  which  is,  for  the  most  part,  not  dry  or 
maniorable.  The  learned  judges,  whose  assistance  I  had  in  this 
very  obscure  question,  point  out  that  the  limit  indicating  such  land 
is  the  line  of  the  medium  high  tide  between  the  springs  and  the 
neaps.  All  land  below  that  line  is  more  often  than  not  covered 
at  high  water;  and  so  may  justly  be  said,  in  the  language  of  Lord 
Hale,  to  be  covered  by  the  ordinary  flux  of  the  sea,^  This  cannot 
be  said  of  an}--  land  above  that  line ;  and  I  therefore  concur  with 
the  able  opinion  of  the  judges,  whose  valuable  assistance  I  had,  in 
thinking  that  medium  line  must  be  treated  as  bounding  the  right 
of  the  crown"  {2'he  Attorney- General  v.  Chatnbers,  4  De  Gex, 
McN.  cC'  Gordon's  R.,  206,  217,  218  ;  S.  C,  27  Eng.  Law  and  Eq. 
R.,  242). 

The  common-law  doctrine,  as  to  what  constitutes  the  shore  of 
the  sea,  is  recognized  in  the  American  States ;  and  it  has  been 
repeatedly  held  that  the  sea-shore  is  that  ground  which  lies 
between  the  ordinary  high-water  mark  and  low-water  mark ;  or, 
in  other  words,  the  space  between  high  and  low-water  mark 
{Storer  v.  Freeman,  6  Mass.  R.,  435,  439 ;  Cutis  v.  Ilussey,  3 
IShepley'^s  R.,  237).  And  it  has  been  before  shown,  that  the  com- 
mon-law rule,  that  all  the  shore  below  ordinary  high-water  mark 
belongs  to  the  sovereign  power  of  the  State  {vide  Mai^tin  v.  Wad- 
dell,  16  Peters''  R.,  367;  Pollard  v.  IIagan,2,  How.  R.,  212; 
Arnold  v.  Mundy,  1  HaUt.  R.,  1 ;   Commonwealth  v.  Charles- 


PROPERIY  ON   THE  SEA-SIIOIiE.  35 

toion,  1  PicTcerhufs  R.,  180,  182 ;  Storer  v.  Freeman,  6  JIass.  B., 
435,  438). 

This,  clearly,  is  the  doctrine  in  respect  to  tlie  sea  and  all  arms 
of  the  sea;  and  it  has  been  held  tliat  the  same  doctrine  applies 
also  to  navigable  rivers.  But  at  common  law  only  arms  of  tlie 
sea,  and  streams  where  the  tide  ebbs  and  flows,  are  deemed  navi- 
gable. Streams  above  tide-water,  although  navigable  in  ftict,  are 
not  deemed  navigable  in  law.  The  title  of  a  riparian  proprietor 
of  land,  bounded  by  a  navigable  river  or  the  sea,  extends  only  to 
high-water  mark ;  that  is  to  say,  this  is  the  rule  at  common  law 
{Middleton  v.  Pritchard,  3  Scammoii' s  R.,  510).  What  is  regarded 
as  hio-h-water  mark  is  the  line  of  the  medium  high  tide  between 
the  springs  and  the  neaps,  and  does  not  extend  to  land  overflowed 
only  at  high  spring  tides. 

It  has  sometimes  been  questioned  whether  private  individuals 
can  gain  a  right  to  the  soil  of  the  sea-shore,  either  by  charter  or 
grant,  or  by  long  continued  possession.  Says  Mr.  Hall,  in  the 
appendix  to  his  work  on  the  Sea-shore:  "  It  may  be  a  question 
whether  it  ought  ever  to  have  been  in  the  power  of  the  crown  to 
alienate  by  grants  to  individuals  any  portions  of  the  sea-shore  of 
the  realm ;  and  it  may  be  still  more  questionable  whether  such 
alienation  ought  ever  to  have  been  presumed  in  a  court  of  law, 
when  no  grant  whatever  could  be  produced.  It  may  be  thought 
that  prescription,  or  presumption  of  law,  ought  in  no  case  to  be 
allowed  to  prevail  against  the  title  of  the  crown  to  so  important  a 
trust,  confided  by  the  law  to  its  charge  for  the  good  of  the  com- 
monwealth.  If  the  king  were  to  make  the  sea-shores  of  the 
realm  a  source  of  private  sale  and  profit,  he  would  be  acting  con- 
trary to  the  trust  for  which  the  ownership  of  the  sliore  was  vested 
in  the  crown  by  the  common  law.  Still  less,  therefore,  ought  pri- 
vate individuals  to  be  aided,  by  presumption  of  law,  in  their 
claims  upon  the  shore  when  the  crown  and  public  are  both  thereby 
greatly  impoverished"  {IlaWs  Essay  07i  Sea-shore,  296).  Mr. 
Hall  was  a  legal  writer  of  considerable  repute  fifty  years  ago  ;  and 
even  now  his  work  on  the  Rights  of  the  Crown  and  Privileges  of 
the  Subject  in  the  Sea-shores  of  the  Realm,  is  regarded  as  very 
good  authority,  although  some  of  the  rules  governing  the  subjects 
which  he  there  discusses  have  been  somewhat  modified,  if  not 
entirely  changed,  since  his  treatise  was  written.  For  example,  it 
is  now  well  settled  that  tire  shore  may  belong  to  a  private  indi- 


35  LAW   OF  BOUNDARIES. 

vidual,  and  that  the  soil  of  the  sea-shore  may  he  acquired  in  the 
same  manner  that  other  rights  in  real  property  are  gained.  The 
shore  may  belong  to  a  private  individual  in  gross,  which  possibly 
mav  suppose  a  grant  before  the  time  of  memory,  or  it  may  be 
part  and  parcel  of  a  manor,  subject  in  all  cases  to  the  rights  which 
the  public  possess  of  using  the  shore  for  the  purpose  of  fishing ; 
fur  it  was  under  this  burden  while  in  the  hands  of  the  sovereign, 
and  will,  therefore,  remain  so  in  the  hands  of  its  grantee,  unless 
the  latter  can  establish  an  exclusive  right  of  fishing  in  himself, 
arisino-  from  a  grant  or  long  continued  enjoyment  (  Vide  Hale  de 
Jure  Maris,  26,  27;  Fltzpatrich  v.  Rohlnson,  1  Hudson  dc 
Broo'kes  B.,  585).  But  all  grants  of  the  sea-shore  by  the  crown 
of  England  to  a  subject  must  have  had  a  date  anterior  to  the  sta- 
tutes now  existing,  restraining  the  alienation  of  crown  lands  {Hall 
on  Sea-shore,  118).  It  has  been  held,  however,  that  juries  must 
be  directed  to  presume  an  ancient  lost  grant  from  the  crown  from 
luns  continued  acts  of  ownersliip  exercised  on  the  sea-shore  by  the 
adjoining  proprietor  {Mayor  of  Kingston  v.  Homer,  1  Coiojper'^s 
JR.,  102,  215 ;  In  re  Belfast  Dock  Act,  1  Irish  Eq.  B.,  128 ; 
Be  AUton''s  Estate,  5  W.  B.,  189;  1  Taylor'' s  Evidence,  Uh  ed., 
I-IOV  The  acts  which  are  relied  upon  as  evidence  of  a  lost  grant 
of  the  shore  are  commonly  the  facts  of  constantly  and  usually 
fetching  gravel,  and  sea- weed  and  sea-sand,  between  the  high-water 
and  low-water  mark,  and  licensing  others  to  do  so  ;  inclosing  and 
embanking  against  the  sea,  and  the  enjoyment  of  what  is  so 
inclosed ;  the  enjoyment  of  wrecks  happening  upon  the  sand ; 
the  presentment  and  punishment  of  jpurpresture  in  the  Court  of 
the  Manor,  and  the  like  {Hale  de  Jure  Maris,  27;  vide  Calmady 
V.  Bowe,  6  Com,  Bench  B.,  861 ;  Duke  of  Beaufort  v.  Mayor  of 
Sicansea,  3  Exchequer- B.,  413;  Le  Strange  v.  Boioe,  4  Eoster  c& 
Fin.  B..  1018  ;  Bhear  on  Water,  89).  But  it  has  been  held  that 
if  the  acts  are  not  continuous,  but  only  occasional,  and  have  always 
been  the  subject  of  dispute,  they  will  not  form  a  sufficient  ground 
for  presuming  a  lost  grant;  and  it  has  been  held  that  the  mere 
user  of  the  sea-shore  by  the  turning  on  of  cattle,  although  without 
interruption  for  the  period  of  sixty  years,  was  not  such  an  act  of 
ownership  as  to  raise  a  presumption  of  title  in  the  owner  of  the 
cattle,  inasmuch  as  the  sea-shore  is  propert}'  of  such  a  nature  that 
it  cannot  be  easily  protected  against  intrusion ;  and  even  if  it 
could,  it  would  not  be  worth  the  trouble  and  expense  of  fencing 


PROPERTY  ON  THE  SEA-SIIORE.  37 

it.  Knowledge  or  acquiesceuee  on  the  part  of  the  person  inter- 
ested in  resisting  the  right  claimed,  or  perseverance  in  the  assei^ 
tion  and  exercise  of  the  riglit  in  the  face  of  opposition  on  his  part, 
mnst  be  proved  in  such  case  to  enable  the  claimant  to  establish 
Ins  title  {Livett  v.  Wiho7i,  3  Bing.  JR.,  115;  Attorney- General  v. 
Chanihers,  4  De  G.  &  J.'s  B.,  55). 

The  shore  has  been  held  to  pass  under  a  grant  of  the  wastes  of 
a  manor.  In  a  recent  case  there  was  a  grant  in  fee  of  all  coals 
and  coal  mines  found  or  to  be  found  within  the  commons,  waste 
lands,  or  marish  grounds  within  the  lordship  of  E.,  with  full 
power  and  authority  to  dig,  search  for,  and  sink  pits,  and  open  the 
mines  in  all  places  convenient  within  the  said  commons,  waste 
grounds  and  marishes,  for  the  getting  of  coal  within  the  lordship. 
The  shore  was  part  of  the  manor,  and  it  was  held  that  the 
coals  under  the  shore  passed  to  the  grantee,  and  that  the  word 
"  waste"  was  a  sufficient  description  of  the  soil  between  high  and 
low-water  marks  {The  Attorney-General  v.  Hammer,^  Jurist,  If. 
S.,  751,  ajid  vide  Attorney- General  v.  Jones,  33  Law  Journal, 
Exchequer,  219).  It  seems  that  the  shore  may  also  pass  under  the 
word  '■^ripa  or  bank,"  or  under  the  words  "anchorage  and 
groundage"  {In  re  Belfast  Dock  Act,  1  Irish  Eq.  R.,  12S,  140; 
V//d  Stranger  v.  Roive,  4  Fos.  ds  Fin.  R.,  104S;  CalmaJy  v. 
Roice,  6  Com.  Bench  R.,  891).  And  according  to  Lord  Hale 
and  Lord  Coke,  where  there  has  been  a  grant  by  the  crown  to  the 
lord  of  a  manor  or  other  person  of  the  rights  to  take  wreck,  there  is 
a  ji;;'m«  facie  presumption  that  the  sea-shore  itself  was  also 
intended  to  pass,  inasmuch  as  a  ship  cannot  be  a  wreck,  within  the 
legal  meaning  of  the  term,  without  being  cast  upon  the  land,  and  that 
between  high  and  low-water  mark  {Ilale  de  Jure  Maris,  27; 
Constables  Case,  5,  Colce's  R.,  107 ;  Calmady  v.  Roive,  supra  ; 
Rex  V.  Ellis,  1  Maule  &  Selw.  R.,  662  ;  vide  Round  on  Riparian 
Owner's,  14).  According  to  other  writers,  however,  the  right  to 
wreck  is  merely  a  franchise,  carrying  with  it  no  right  to  the  soil 
or  shore  {Phear  on  Water,  52  ;  Hall  on  the  Sea-shore,  81-99). 

According  to  the  latest  English  authorities  the  riglit  to  a  several 
fifcliery  lyrima  facie  imports  the  ownership  uf  the  soil  of  the  sea, 
or  river  where  the  right  of  fishing  is  exercised  {Somerset  v.  Fog- 
loell,  5  Barnwell  dc  CresweWs  R.,  875;  Ilolford  v.  Bailey,  8 
Queen's  Bench  R.,  1000  ;  S^C,  13  ih.,  427).  This  is  regarded  by 
a  modern  elementary  writer  as  opposed  to  sound  principles,  and 


38  i^TF   OF  BOUNDARIES. 

he  expresses  the  opinion  that  the  decisions  which  la_y  down  this  doc- 
trine will  be  overruled  should  the  point  come  before  a  court  of  appeal 
for  consideration  [Paterson  on  the  Fishing  Laivs,  65).  And  some 
remarks  have  been  made  in  a  recent  case  before  the  English  Queen's 
Bench  in  favor  of  the  adoption  of  a  different  rule  than  that  which 
connnonlv  prevails  upon  the  subject.  Lord  Chief  Justice  Cock- 
biirn,  in  the  course  of  his  opinion  in  the  case,  observed :  "  It  is 
admitted  on  all  hands  that  a  several  fishery  may  exist  indepen- 
dently of  the  ownership  of  the  soil  in  the  bed  of  the  water.  Why, 
then,  should  such  a  fishery  be  considered  as  carrying  with  it,  in  the 
absence  of  negative  proof,  the  property  in  the  soil  ?  On  the  con- 
trary, it  seems  to  me  that  there  is  every  reason  for  holding  the 
opposite  way.  The  use  of  water  for  the  purpose  of  fishing  is,  where 
the  fishing  is  united  with  the  ownership  of  the  soil,  a  right  inci- 
dental and  accessory  to  the  latter.  On  a  grant  of  the  land  the  water 
and  the  incidental  and  necessary  right  of  fishing  would  necessarily 
pass  with  it.  If,  then,  the  intention  be  to  convey  the  soil,  why 
not  convey  the  land  at  once,  leaving  the  accessory  to  follow  \  Why 
grant  the  accessory  that  the  principal  n^ay  pass  incidentally  ? 
Surely  such  a  proceeding  would  be  at  once  illogical  and  unlawyer- 
like.  The  greater  is  justly  said  to  comprehend  the  less,  but  this 
is  to  make  the  converse  of  the  proposition  hold  good.  A  grant  of 
land  carries  with  it,  as  we  all  know,  the  mineral  which  may  be 
below  the  surface.  But  who  ever  heard  of  a  grant  of  the  mineral 
carrying  with  it  the  general  ownership  of  the  soil  ?  Why  should 
a  different  principle  be  applied  to  the  grant  of  a  fishery,  which 
may  be  said  to  be  a  grant  of  that  wdiich  is  above  the  surface  of  the 
soil,  as  a  grant  of  the  mineral  is  a  grant  of  that  which  is  below  it? 
Nor  should  it  be  forgotten  that  the  opposite  doctrine  involves  the 
startling  and  manifest  absurdity  that  should  the  water  be  diverted 
by  natural  causes  or  become  dry,  the  fishing,  which  was  the  pri- 
mary and  principal  object  of  the  grant,  would  be  gone,  and  the 
property  in  the  soil,  which  only  passed  incidentally  and  as  acces- 
sory to  the  grant  of  the  fishery,  M'ould  remain"  {Marshall  v. 
Ulleswater  Steam  Navigation  Co.,  3  Best  di;  Smith'' s  Ji.,  T32, 
748;  S.  C,  6  ib.,  570;  vide  Hall  07i  Sea-shore,  4:5-81).  This  is 
certainly  sound  reasoning  and  correct  doctrine,  and  although  the 
decision  does  not  necessarily  overrule  the  other  authorities  upon 
the  subject,  the  doctrine  of  the  remarks  of  the  learned  chief  jus- 
tice must  ultimately  be  the  doctrine  of  the  courts. 


PROPERTY  ON   THE  SEA-SHORE.  39 

It  is  said  by  a  very  respectable  Englisli  writer :  •'  It  must  be 
remembered  that  the  soil  of  the  sea  is  not  susceptible  of  transfer 
till  it  becomes  convertible  or  derelict "  {Schultes  on  Aquatic  Rights, 
110).  In  snj)port  of  this  proposition  Mr.  Schultes  refers  to  Bacon's 
Abridgment,  title  "  Prerogative,"  B,  where  a  case  is  quoted  in 
which  there  was  a  grant  by  the  crown  of  the  manor  of  Holbeck, 
with  its  appurtenances.  In  the  letters-patent  were  the  following 
words:  N^ecnon  totuni  ilUidfandum,  et  solum,  et  terres  sicas  con- 
tUjiie  adjacent,  to  the  premises,  quae  sunt  aqun.  cooperta,  vel  quae 
in  posterum  de  aqua  possunt  Tecuperarl,  etc.,  non  obstante  non 
nomlnando  valorem  qualltatem  sive  quantitatem,  etc.  Some  100 
ot"  acres  having  been  recovered  from  the  sea,  it  was  a  question 
whether  they  passed  by  the  patent.  Notwithstanding  the  strong 
language  of  the  grant,  the  court  held  that  the  patent  as  to  those 
100  acres  which  became  derelict  was  void  {The  Attorney- General 
v.  Sir  Edioard  Farmen,  2  Levins'  R.,  171).  This  is  a  very  early 
case,  and  the  doctrine  of  it  has  not  always  been  adopted  by  the 
courts,  for  it  seems  by  the  later  authorities  that  in  some  cases  a 
subject  may  have  a  right  to  the  soil  of  the  sea  when  covered  with 
water.  It  was  said  by  Erie,  Ch.  J.,  in  a  late  case  decided  by  the 
English  Common  Bench,  that  the  soil  of  the  sea-shore  to  the 
extent  of  three  miles  from  the  beach  is  vested  in  the  crown,  and 
that  there  is  no  rule  of  law  which  prevents  the  crown  from  grant- 
ing to  a  subject  that  which  is  vested  in  itself  ( The  Free  Fishers  of 
Whitstable  v.  Gann,  11  Coin  Bench  R.,  N'.  S.,  387;  vide  Same 
V.  Foreman,  2  Law  R.,  C.  P.,  QS^',  S.  C,  3  ih.,  578).  And 
according  to  Lord  Hale,  as  understood  by  Mr.  Angell,  "  those 
parts  of  the  sea  which  may  require  a  naval  armament  to  protect  them 
do  not  lie  within  the  extent  of  private  acquisition  or  possession  " 
(  Vide  Angell  on  Tide-waters,  286  ;  Hale  de  Jure  Maris,  32). 

As  the  sea-shore  may  be  part  of  a  manor,  so  it  may  be  parcel  of 
a  vill  or  parish,  and  evidence  for  that  will  be  the  usual  perambula- 
tions, common  reputation,  known  metes  and  bounds,  and  the  like 
{Ilale  de  Jure  Maris,  27).  But  it  is  held  by  the  court  tliai,  p>rima 
fade,  the  sea-shore  is  extra-parochial  {Regina  v.  Jfusson,  8  Fills 
i&  Blackburn'' s  R.,  900 ;  S.  C,  4  Jur.,  JSf.  S.,  Ill ;  and  vide  Rex 
V.  Gee,  1  Ellis  cfc  Ellis'  R.,  1068). 

It  may,  then,  be  affirmed  that  it  is  a  settled  principle  in  the  laws 
of  this  country  and  of  England  that  tlie  right  of  soil  of  owners  of 
land  bounded  by  the  sea,  e^ which  is  the  same,  on  navigable  rivers 


^Q  LAW    OF  BOUNDARIES. 

where  the  tide  ebbs  and  flows,  extends  only  to  high-water  mark, 
and  that  the  shore  below  common,  but  not  extraordinary  high-water 
mark,  belongs  to  the  State  as  trustee  for  the  public.  In  England 
the  crown  and  in  this  country  the  people  have  the  absolute  pro- 
prietary interest  in  the  shore  of  these  waters,  though  it  may  by 
grant  or  prescription  become  private  property  (3  Kent's  Com.,  1th 
^ed.,  oU,  515).  But  the  grantee  of  such  shore  will  not  take  a 
Hxed  freehold,  but  one  that  shifts  as  the  shore  recedes  or  advances 
{Scmtton  V.  Brown,  4:  Barn,  cfc  Ores.  B.,  485).  So  that  in  all 
cases  where  the  land  of  a  private  individual  is  bounded  upon  the 
sea,  prima  facie,  the  boundary  is  the  shore  at  ordinary  high-water 
mark. 


CIIAPTEPw  III. 

THE  RIGHTS  OF    PROPERTY    ON    NAVIGABLE    RIVERS    WHERE    THE   TIDB 

ESIiS    AND    FLOWS THE    LAW  OF  BOUNDARY  WITH    REFERENCE    TO 

THESE  RIGHTS THE  RULES  APPLICABLE  TO  THE  BOUNDARY  OF   PRI- 
VATE PROPERTY  BORDERING  ON  NAVIGABLE  RIVERS. 

The  Siime  principle  which  governs  the  question  of  boundary  of 
property  adjoining  the  sea,  applies  to  arms  of  the  sea,  estuaries 
and  navigable  rivers  below  tide- water.  And,  therefore,  it  has 
been  recently  decided  by  the  English  Court  of  Queen's  Bench, 
that  where  a  navigable  river  divides  two  parishes,  the  boundary 
of  each  parish  is  presumed,  until  the  contrary  be  shown,  to  coin- 
cide with  the  line  of  the  medium  high  tide  on  each  bank.  The 
bed  of  the  river  was  conserpiently  declared  to  be  extra-parochial 
{Trustees  of  the  Dalce  of  Brid'jewater  v.  Booth,"!  Best  dc  Smith'' s 
B.,  34:8 ;  S.  C,  2  Laio  R.,  Q.  B.,  4).  This,  however,  is  merely  a 
vrima  facie  presumption,  and  it  seems  that  evidence  may  be  pro- 
duced to  show  that  the  bed  of  the  river  belongs  to  both  or  per- 
haps wholly  to  one  of  the  adjoining  parishes.  In  a  recent  case  in 
the  English  Court  of  Quccirs  Bench,  it  appeared  that  the  pier  at 
Rothcrhithe  rested  on  wooden  piles  fixed  in  the  bed  of  the  river 
between  high  and  low-water  mark  ;  that,  in  beating  the  bounds 
of  the  parish  of  Rothcrhithe  the  authorities  were  accustomed  to 
proceed  along  the  embankments,  wharves  or  other  shores  of  the 
river  Thames ;  while  in  the  adjoining  parish  of  Bermondsey  the 


LAXDS   ON  NAVIGABLE  niVEES.  4L 

autlioritios  ■^eut  along  the  middle  of  the  river.  The  parish  of 
liotherhithe  had  never  done  or  exercised  any  parochial  acts  of 
authority  beyond  the  enibankinents.  The  question  of  the  liability 
of  the  pier  to  be  rated  to  the  relief  of  the  poor  having-  come 
before  the  court  on  a  special  case  stated  for  their  opinions,  Lord 
Campbell  said:  "  At  nisi prlas  I  should  direct  a  jury  to  presume 
from  the  circumstances  of  this  case  that  the  land  on  which  the 
pier  is  built  was  within  the  parish  of  Rutherhithe.  Where  the 
beaters  of  the  boundaries  go  as  near  the  extremities  of  the  parish 
as  the  nature  of  the  land  will  admit  of,  what  more  is  necessary  ? 
They  assume  that  it  is  well  known  that  the  parish  extends  to  the 
middle  of  the  river,  and  so  the  authorities  of  Rjtherhithe  (though 
other  parishes  act  ditl^erently)  content  themselves  with  keeping 
along  the  dry  land,  and  the  acts  of  the  Bsrmondsey  authorities 
are  rather  against  those  in  fovor  of  the  exemption  claimed  by  the 
defendants,  as  showing  that  other  neighboring  parishes  on  the 
Thames  extend  to  the  middle  of  the  river"  {McCaiinon  v.  Sinclair^ 
2  Edis  &  Ellis''  B.,  53  ;  S.  C,  5  Ju,\,  N.  S.,  1,022  ;  .S'.  C,  28  Law 
J.,  M.  a,  2-t7). 

The  rule  that  the  land  of  an  individual  bounded  upon  a  navi- 
gable river,  below  tide-water,  extends  only  to  common  high-water 
mark,  is  not  alsolute,  but  it  may  be  shown  by  competent  evidence 
that  the  individual  is  the  owner  of  the  shore  extending  down  to 
low-water  mark.  This  doctrine,  however,  is  not  confined  to 
boundaries  upon  navigable  rivers,  for  the  ordinary  rule  may  be 
varied  by  evidence  in  cases  of  boundaries  upon  the  sea  itself,  as 
well ;  for  example,  it  has  been  held  by  the  Supreme  Judicial  Court 
of  Massachusetts,  that  by  a  usage  in  that  State  (founded  on  a 
colony  ordinance  of  IGil,  ancient  charter,  l-iS)  which  has  the 
force  of  common  law,  the  owner  of  lands  bounded  on  the  sea  or 
salt  water  shall  hold  to  low-water  mark,  so  that  he  does  not  hold 
more  than  100  rods  below  high -water  mark,  and  saving  the  rights 
of  othei's  to  convenient  ways  (Stone  v.  E/'eenum,  G  Mass.  12.,  435  ; 
Austin  V.  Carter,  1  ib.,  231  ;  Coniinonivealth  v.  Charlestown,  1 
Pick.  R.,  180  ;  Barker  v.  Bates,  13  ib.,  255).  It  has  been  held, 
however,  that  this  rule  does  not  extend  to  a  grant  of  a  piece  of 
land  entirely  covered  at  high-water  {Sufkin  v,  Haskell,  3  Pick. 
P.,  356).  And  where  land  is  granted  as  bounded  on  a  way,  which 
way  adjoins  the  sea-shore,  it  has  been  held  that  the  usage  does  not 
apply  {Codman  v.  Wi7islow,  10  Jfass.  P.,  146).  But  a  proprie- 
6 


42  LAW   OF  BOVSB ARIES. 

tary  grant,  in  16S0,  of  "  a  piece  of  land  below  liigli-water  mark, 
to  set  a  shop  upon,  not  exceeding  forty  feet  in  width,"  was  cou 
Btrued  to  extend  to  low-water  mark  {Adams  v.  Froihijigham,  3 
2fass.  IL,  350).  It  may  be  added  in  this  connection,  that  the  ebb 
of  tliu  tide,  where  from  natural  causes  it  ebbs  the  lowest,  and  not 
the  average  or  common  ebb,  is  to  be  taken  as  the  low-water  mark 
{Sjjarhawk  v.  Bidlard,  1  21et.  B.,  95). 

At  an  early  day  the  Supreme  Court  of  Connecticut  laid  down 
the  rule,  in  unqualilied  terms,  that  the  proprietor  of  land  adjoin- 
in"  to  a  navigal)le  river  has  the  exclusive  right  to  the  soil, 
between  high  and  low-water  marks,  for  the  purpose  of  erecting 
wharves  and  stores  thereon.  This  was  declared  in  giving  con- 
struction to  a  grant,  involving  the  shores  of  Dragon  river  at  a 
point  where  the  tide  ebbs  and  flows,  and  the  question  evidently 
turned  upon  the  language  of  the  grant ;  and  the  court  did  not 
design  to  hold  that  the  common-law  doctrine  that,  prima  facie, 
the  title  to  all  parts,  the  arms  of  the  sea  and  navigable  rivers,  to 
high-water  mark,  is  in  the  sovereign  of  the  State ;  for  the  rule 
was  expressly  recognized  by  the  chief  justice,  in  delivering  the 
opinion  of  the  court  (and  it  was,  therefore,  argued  as  an  undoubted 
consequence),  that  the  State  "may  grant  the  property  of  the  soil 
between  high  and  low-water  mark  to  a  subject  or  coi-poration  " 
{East  Haven  v.  Hemingway,  7  Conn.  B.,  186,  198) ;  and  three 
yeai-s  later,  the  same  court  declared  the  common-law  rule  upon 
the  subject  to  be  applicable  in  that  State.  Daggett,  J.,  who 
delivered  the  opinion  of  the  court,  said :  "  The  doctrine  of  the 
common  law  is  that  the  right  to  the  soil  of  the  proprietors  of  land 
on  navigable  rivers  extends  only  to  high-water  mark;  all  below  is 
puhlici  juris,  in  the  king,  in  England.  That  is  the  law  in  Con- 
necticut ;  for  we  liave  no  statute  abrogating  it.  It  was  the  law 
brought  by  onr  ancestors  ;  it  is  our  law  ;  the  soil  being  not  indeed 
owned  ])y  the  king,  but  by  the  State"  {Chapman  v.  Kimhall,  9 
Conn.  R.,  38,  40).  So  far  as  the  question  of  houndar/j  is  con- 
cerned, therefore,  the  common  law  is  in  force  in  Connecticut ;  but 
the  rights  of  the  proprietor  of  lands  to  the  shores  of  the  sea  or  a 
navigable  river  have  been  somewhat  extended  in  that  State ;  for 
it  was  laid  down  in  the  case  of  Chapman  v.  Kimball,  that  the 
adjoining  proprietors  have  the  right  to  the  shore,  subject  to  the 
paramount  right  of  the  public.  The  judge  said:  "The  usage  of 
the  owners  of  land  to  high-water  mark  to  wharf  out  against  their 


LANDS   ON  NAVIGABLE  RIVERS.  43 

own  land  lias  never  been  disputed.  The  interests  of  navigation 
have  been  subserved,  and  the  consequences  have  been  altogether 
salutary.  On  the  death  of  the  owner  to  high-water  mark,  his 
estate  in  the  shore  and  the  erections  upon  it  has  descended  to  his 
heirs.  This  is  our  common  law,  founded  on  immemorial  usage 
{East  Haven  v.  Jlemhigtvay  et  al.,  7  Conn.  R.,  186,  and  the 
cases  there  cited  ;  Chapman  v.  Kimball,  9  Conn.  li.,  41,  42) ;  and 
Judge  Swift,  long  before  that  time,  said,  in  his  System:  'All 
adjoining  proprietors,  on  navigable  rivers  and  the  ocean,  have  a 
right  to  the  soil  covered  with  water  as  far  as  they  can  occupy  it ; 
that  is,  to  the  channel,  and  have  the  exclusive  privilege  of  wharf- 
ing  and  erecting  on  the  front  of  their  land'  (1  Swifi's  System, 
341).  But  in  his  Digest,  written  nearly  thirty  years  after,  he 
states  the  law  to  be  that  '  the  ocean,  navigable  arms  of  the  sea  and 
navigable  rivers,  as  far  as  high-water  mark,  belong  to  the  public; 
and  the  proprietors  of  the  adjoining  land  own  to  high- water  mark '  " 
(1  Swift's  Dig.,  109). 

A  river  may  be  navigable  below  the  ebb  and  flow  of  the  tide, 
in  the  sense  of  the  common  law,  and,  in  fact,  navigable  above  the 
ebb  and  flow  of  the  tide ;  but  not  so  in  accordance  with  the  rules 
of  the  common  law.  So  that  the  question  of  boundary,  in  respect 
to  lands  adjoining  such  river,  would  have  to  be  determined  by  one 
principle  above,  and  another  below,  tide-water.  Even  the  Missis- 
sippi river,  navigable  for  a  large  class  of  vessels  for  thousands  of 
miles  above  tide-water,  according  to  some  decisions,  is  not 
regarded  in  law  navigable.  So  that  a  grant  of  land,  lying  upon 
that  river,  by  the  United  States,  without  reservation,  passes  to 
the  grantee  a  title  to  the  middle  thread  of  the  current,  the  same 
as  in  the  case  of  grants  bounded  upon  the  smaller  rivers  of  the 
country  (  Vide  Middleton  v.  Pritchard,  3  Scam.  R.,  510). 

The  common-law  criterion  of  a  navigable  stream  is  the  flow  and 
reflow  of  the  tide  ;  the  civil-law  criterion  is  the  capability  and 
suitableness  of  the  stream  to  the  purposes  of  navigation,  in  the 
ordinary  state  of  the  water.  In  the  State  of  Tennessee  the  civil- 
law  criterion  has  been  adopted.  But  in  all  other  respects  the 
principles  of  the  common  law,  regulating  and  defining  the  rights 
of  the  public  and  the  riparian  owners,  remain  unchanged.  And 
it  has  been  declared  by  the  Supreme  Court  of  the  State  that  a 
river  may  be  navigable,  in  the  ordinary  acceptation  of  the  term, 
and  yet  not  navigable  in^  legal,  or  common-law  sense ;  and  such 


44  LAW   OF  BOUyDARIES. 

is  a  river  or  stream  of  sufficient  depth,  iiatnrallv,  for  valuable 
floatage,  sucli  as  rafts,  flat-boats,  and  small  vessels  of  lighter  draft 
than  ordinai-y.  It  was  further  declared  that,  if  a  river  or  water 
course  be  navigable  in  a  legal  sense,  the  soil  covered  by  the  water, 
as  well  as  the  use  of  the  stream,  belongs  to  the  public.  If  it  be 
navigable  only  in  the  ordinary  sense,  the  ownership  of  the  bed  of  the 
stream  is  in  the  riparian  proprietors,  and  the  public  have  an  ease- 
ment therein  for  the  purposes  of  transportation  and  commercial 
intercoui-se.  If  the  stream  be  so  shallow  as  to  be  unfit  for  such 
purposes  of  transportation  and  commerce,  the  right  both  of  pro- 
perty and  use  is  wholly  and  absolutely  in  tlie  owners  of  the 
adjoining  land  {Stuart  v.  Clark,  2  Sivaii's  R.,  9). 

By  the  civil  law  a  public  river  is  defined  as  one  which  is  per- 
ennial, or  ever  flowing,  and  which  is  also  capable  of  navigation. 
The  use  of  the  bed  of  such  a  river  is  in  tlie  public;  but  the  soil 
itself  belongs  to  the  owners  of  the  banks  on  each  side.  By  the 
civil  law  the  public  liaye  a  right  of  towiiig  and  mooring  boats,  and 
of  h>ading  and  unloading  their  goods  on  the  banks  of  a  public 
rWer  {Digest,  lib.  43,  tit.  12;  List.,  lih,  II,  tit.  1,  4;  vide  San- 
dars'  histitutes,  lib.  2,  tit.  1,  i2).  Xo  such  rights  as  these,  how- 
ever, are  recognized  at  common  law,  except  by  well  established 
usage;  and  then  they  are  held  to  exist  {Ball  v.  Herbert,  3  Term 
R.,  253 ;  Badger  v.  "s.  T.  R.  Co.,  1  EUis  d;  K  R.,  347 ;  Mon- 
moiith  Canal  Co.  v.  Hill,  4  HurUtone  <&  Norman'' s  R.,  427  ;  Hol- 
lis  V.  Goldfinch,  1  Barn.  &  Cres.  R.,  205). 

It  has  been  held  by  the  Supreme  Court  of  Indiana  that  there 
are  two  classes  of  streams  within  and  bordering  on  that  State, 
which  are  called  navigable  streams  and  public  highways.  One 
class  is  only  navigable  for  certain  kinds  of  craft,  and  is  not  visited 
by  vessels  from  the  navigable  waters  of  other  States,  but  the  other 
is  navigable  for  such  vessels.  The  State  has  exclusive  jurisdiction 
over  the  first  class,  and  may  authorize  the  streams  of  which  it  is 
composed  to  be  obstructed  k^r  the  public  good,  and  no  action  can 
be  sustained  therefor  except  ])rivate  property  be  taken  or  injured. 
Over  the  streams  of  the  second  class,  in  the  absence  of  congressional 
interference,  the  State  has  a  like  jurisdiction,  so. far  as  those  streams 
are  within  her  territorial  limits ;  but  the  national  legislature  may 
interfere  and  deprive  the  State  of  this  jurisdiction.  A  State  cannot 
seriously  obstruct  the  navigation  of  those  streams,  which  are  chan- 
nels of  inter-State  trade,  as  congress  has  interfered  to  regulate  com 


LANDS    ON  NAVIGABLE  EIVERS.  45 

mei'ce  upon  them  {Dej^ew  v.  The  Board  of  Trustees^  etc.,  5  Indlai^a 
li.,  8).  These  are  important  distinctions;  but  as  there  ai-e  no  com- 
mon-law navigable  rivers  in  the  State  of  Indiana,  tlie  question  of 
houndary  is  determined  by  one  rule  in  respect  to  all  lands  adjoin- 
ing the  rivers  of  sucli  State,  and  that  is  the  one  applicable  to  non- 
navigable  rivers  by  the  common  law. 

In  the  State  of  New  York  three  classes  of  rivers  in  and  border- 
ingnpon  the  Stateare  recognized  by  the  courts ;  those  which  are  navi- 
gable at  common  law  or  below  tide-water,  thooe  which  are  not  navi- 
gable at  common  law  but  are  nevertheless  navigable  in  fact -aw^  hyq, 
declared  to  be  public  highways,  and  those  which  are  in  no  sense 
navigable  or  public  highways.  The  people  in  their  sovereign  corpo- 
rate capacity  own  the  beds  of  all  navigable  waters  within  the  State. 
They  are  held  for  the  common  benefit,  and  to  promote  the  con- 
venience and  enjoyment  of  all  the  citizens,  but  not  in  the  manner 
the  capitol  and  public  buildings  are  owned.  The  State  may 
authorize  the  erection  of  wharves  upon  the  shores  of  those  waters 
by  private  individuals,  but  it  can  only  do  so  to  promote  the  common 
benefit  and  enjoyment  {Smith  v.  Zeviniis,  8  JV.  Y.  R.,  472). 
The  boundary  of  lands  owned  by  private  individuals  bordering  on 
these  waters  is  the  line  of  high-water  mark.  The  State  exercises 
certain  rights  and  functions  over  the  rivers  of  the  State  which  are 
not  navigable, but  are  declared  neverthless  highways;  but  the  cpies- 
tion  of  boundaiy  in  respect  to  these  and  those  which  are  in  no 
sense  public  is  precisely  the  same.  The  rule  in  those  cases  will  be 
frequently  referred  to. 

In  the  State  of  North  Carolina  it  is  held  that  the  ebb  and  flow 
of  the  tide  is  no  rule  for  determinina;  whether  a  river  is  navigable 
or  not,  and  the  ordinary  rules  for  fixing  the  boundary  of  private 
lands  adjoining  what  is  called  navigable  rivers  in  that  State  are 
not  fully  recognized  by  their  courts.  It  has  been  accordingly 
declared  by  the  Supreme  Court  of  the  State  that  a  stream  eight 
feet  deep  and  sixty  yards  wide,  with  an  unobstructed  navigation 
for  sea  vessels  to  the  ocean,  is  a  navigable  stream,  and  its  edge  at 
low-water  mark  is  the  boundary  of  the  adjacent  land  ( Wilson  v. 
Forhes,  2  Dev.  i?.,  30  ;  Ingram  v.  ThreadgUl,  3  ih.,  59),  while 
in  the  State  of  Alabama  it  is  held  that  the  "  navigable  waters  " 
within  the  State  have  been  dedicated  to  the  use  of  the  citizens  of 
the  United  States,  so  that  it  is  not  competent  for  congress  to  grant 
a  right  of  property  in  the#ame  to  individuals;  and  further,  that 


46  LAT\'  OF  BOCyD ARIES. 

the  "navigable  waters"  embrace  all  the  soil  witlnn  higli-water 
mark  {The  Mayor  v.  Fslava,  9  Porter's  i?.,  577). 

To  state  the  rule  in  a  few  %vords,  it  may  be  affirmed  that  by 
tlie  common  law,  which  is  generally  in  force  in  this  country,  the 
alveus  or  bed  of  all  navigable  rivers  as  far  as  the  tide  ebbs  and 
flows  is  vested  in  the  State,  subject  to  the  public  rights  of  naviga- 
tion and  fishing.  In  determining  the  line  of  demarkation  between 
the  property  of  the  State  in  the  soil  of  a  navigable  river  and  the 
property  of  the  riparian  owners  on  each  side  of  the  stream  the 
same  rule  is  to  be  applied  as  in  case  of  property  bounding  on 
the  sea-shore ;  consequenth^  the  property  of  the  State  will  not 
extend  beyond  tlie  line  of  the  medium  high  tides  throughout  the 
year,  so  tliat  lands  of  a  private  individual  bounded  upon  a  navi- 
gable river  below  tide-water  extend  to  ordinary  higli-water  mark, 
and  high-water  mark  is,  prima  facie  the  boundary  line.  All  below 
high-water  mark  belongs  to  the  State  {State  v.  Jersey  City.,  1 
Dutcli€r''s  R.,  525).  This  is  the  ordinary  or  general  rule,  which 
may  be  waived  or  varied  by  usage  or  other  evidence  in  certain 
cases. 

The  common  law,  governing  the  right  of  property  in  rivers  and 
streams,  has  long  been  settled.  The  law  of  maritime  and  fluvial 
property  and  rights,  as  laid  down  by  the  great  authority  in  the 
law.  Lord  Chief  Justice  Hale,  in  his  tract,  De  Jure  Maris,  has 
been  uniformly  and  repeatedly  recognized  and  followed  in  the 
courts  of  Westminster  Hall ;  and  very  often  the  same  rules  have 
been  adopted  by  the  courts  of  this  country. 

The  question  as  to  what  should  be  regarded  a  navigable  river 
in  this  countiy  has  been  very  recently  considered  by  the  Supreme 
Court  of  the  United  States,  although  the  case  before  the  court 
involved  simply  the  construction  of  an  act  of  Congress  in  which 
the  term  is  used.  The  court  expressly  declared,  however,  tliat  the 
doctrine  of  the  common  law,  as  to  the  navigability  of  waters,  has 
no  application  in  this  country.  Here,  it  was  said,  the  ebb  and 
flow  of  the  tide  do  not  constitute,  as  in  England,  any  test  at  all 
of  tlie  navigability  of  waters.  The  test  by  which  to  determine 
the  navigability  of  our  rivers  is  found  in  their  navigable  capacity. 
Those  rivers  are  public  navigal)le  rivers,  in  law,  which  are  navi- 
gable in  fact.  Rivers  are  navigable  in  fact  when  they  are  used, 
or  are  susceptible  of  being  used  in  their  ordinary  condition  as 
highways  for  commerce,  over  which  trade  and  travel  are  or  may 


LAXDS   ON  NAVIGABLE  FIVERS.  47 

be  conducted  in  the  customary  modes  of  trade  and  travel  on  water; 
and  it  was  further  dechired  that  the}^  constitute  navigable  waters 
of  the  United  States,  within  the  meaning  of  the  acts  of  Congress, 
in  contradistinction  from  the  navigable  waters  of  the  States,  when 
they  form,  in  their  ordinary  condition  by  themselves,  or  by  uniting 
with  other  waters,  a  continued  highway,  over  which  commerce  is 
or  may  be  carried  on  with  other  States  or  foreign  countries  in  the 
customary  modes  in  which  such  commerce  is  conducted  by  water. 
It  was  accordingly  held  that  Grand  river,  in  Michigan,  is  a  navi- 
gable water  of  the  United  States  from  its  mouth,  in  Lake  Michi- 
gan, to  Grand  Rapids,  a  distance  of  forty  miles ;  being  a  stream 
capable  of  bearing  for  that  distance  a  steamer  of  one  hundred  and 
twenty-three  tons  burden,  laden  with  merchandise  and  passengers, 
and  forming,  by  its  junction  with  tlie  lake,  a  continued  highway 
for  commerce,  both  with  other  States  and  with  foreign  countries 
{T/ie  Dcmiel  Ball,  10  Wall.  7?.,  557).  This  does  not  necessarily 
settle  the  rule  oi houndat'i/  in  respect  to  such  rivers;  but  the  case 
has  an  important  bearing  upon  that  subject. 

Of  common-law  right,  the  property  of  the  soil,  and  of  all  aquatic 
privileges  for  fisheries,  etc.,  in  the  shores  and  arms  of  the  sea,  and  in 
navigable  rivers  in  which  the  tide  flows,  is  in  the  sovereign  ;  while 
all  the  uses  and  enjoyment  are  public  and  common.  The  presump- 
tion of  the  law  is  always  that  this  origiiuil  right  continues,  unless 
the  contrary  is  shown  by  express  proof  of  private  right  by  grant  or 
prescription.  It  is  clear,  upon  any  view  of  the  law,  that  the  ori- 
ginal or  the  presumptive  right  of  the  people  to  the  property  of 
the  navigable  rivers  and  their  beds  does  not  prevent  actual  appro- 
priation of  proprietary  interests  in  them  to  private  citizens  by 
f;:rants.  Therefore,  a  subject  may  have  a  right  in  creeks  or  arms 
of  the  sea  by  charter  or  grant ;  and  the  sovereign  power  may,  also, 
"grant  that  very  interest  itself,  viz.,  a  navigable  river;  that  is,  an 
arm  of  the  sea,  the  water  and  soil  thereof."  The  statutes  of  some 
of  the  States  adopt  the  saine  principle ;  for  example,  the  statute  of 
New  York,  which  authorizes  the  commissioners  of  the  land  office 
to  make,  in  their  discretion,  grants  of  land  under  water  in  all  the 
navigable  rivers  in  the  State,  and  in  the  bay  and  harbor  of  New 
York  (1  R.  S.,  208  ;  1  Statutes  at  Large,  208).  It  may  be  added 
that  rivers,  where  the  tide  ebbs  and  flows,  probably  do  not  belong 
to  the  public,  only  in  those  parts  which  are  navigaUe.  So  that 
the  owners  of  lands  adjoiiing  a  river  below  the  ebb  and  flow  of 


48  LAW  OF  BOUXD ABIES. 

the  tide,  if  navigable,  are  bounded,  jprz/na  facie,  by  the  line  of 
high-water  mark ;  but  if  not  in  fact  navigable,  then  they  may  be 
presumed  to  own  to  the  center  of  the  stream. 

In  respect  to  the  title  to  tlie  bed  of  the  stream,  the  Supreme 
Court  of  New  Jersey  lias  recently  decided  that  the  State  is  the 
al)solute  owner  of  all  navigable  waters  within  the  territorial  limits 
of  the  State,  and  of  the  soil  under  such  waters  ;  and  that  tlie  legis- 
lature may,  therefore,  lawfully  grant   any  portion  of  such  soil, 
lying  below  high-water  mark,  to  any  person  without  making  com- 
pensation to  the  adjacent  riparian  proprietors.     The  court  further 
decided  that  a  statute,  giving  to  a  railroad  company  the  right  to 
construct  their  road  along  a  navigable  stream,  and  to  acquire  the 
rights  of  the  shore  owners,  does  not  confer  upon  such  company 
the  right  to  take  the  lands  of  the  State  lying  below  high-water 
mark.     And  the  general  doctrine  was  declared  that  the  owner  of 
lands,  lying  along  tlie  bank  of  a  navigable  stream,  may,  by  the 
local  custom  of  New  Jersey,  acquire  title  to  the  land  in  front  of 
liim  by  reclaiming  and  improving  the  same.     But  that  the  title 
to  such  land  does  not  rest  in  the  riparian  proprietor  until  the  land 
is  actually  reclaimed ;  and,  as  the  custom  rests  in  mere  license, 
revocable  at  the  pleasure  of  the  legislature,  the  latter  may  grant 
such  land  to  a  stranger  at  any  time  before  the  same  is  reclaimed 
and  annexed  to  the  upland  {Stevens  v.  Faterson,  etc..  Railroad 
Company,  34  N.  J.  Law  R.,  532).     This  seems  to  be  in  accord- 
ance with  the  doctrine  laid  down  by  Lord  Hale,  where  he  says : 
"  There  be  some  streams  or  rivers  that  are  private,  not  only  in 
propriety  or  ownership,  but  also  in  use  ;  as  little  streams,  and  rivers 
that  ai-e  not  a  common  passage  for  the  king's  people.     Again, 
there  be  other  rivers,  as  well  fresh  as  salt,  that  are  of  common  or 
public  use  for  carriage  of  boats  and  lighters ;  and  these,  whether 
they  are  fresh  or  salt,  whether  they  flow  and  reflow  or  not,  are, 
jyrlma  facie  jmblici  juris,  common  highways  for  man  or  goods,  or 
both,  from  one  inland  town  to  another.     Thus,  the  rivers  of   Wey, 
oi  Severn,  of  Thames,  and  divers  others,  as  well  above  the  bridges 
and  ports  as  below,  as  well  above  the  flowings  of  the  sea  as  below, 
and  as  well  where  they  have  come  to  be  of  private  propriety  as  in 
what  part  they  are  of  the  king's  propriety,  are  public  rivers  juris 
publicV^  {De  Jure  Maris,  Pars  Prima,  ch.  3). 


LANDS   ON    UNXAVIGABLE  RIVEES.  49 


CHAPTER  IV. 

THE    EIGHTS  OF  PROPERTY  ON  UNNAVIGABLE  RIVERS  WHERE  THE  TIDE 

DOES    NOT    EBB    AND    FLOW THE    RULES    OF    LAW    APPLICABLE    TO 

THE  BOUNDARY  OF  PRIVATE  PROPERTY  BORDERING-  ON  THESE 
STREAJVI8 THE  COMMON-LAW  DOCTRINE  AS  TO  WHAT  ARE  UNNA- 
VIGABLE   RIVERS,    AND    WHERE    THE    SAME    IS     RECOGNIZED LAW 

OF    BOUNDARY    IN    RESPECT   TO    ARTIFICIAL    WATER-COURSES. 

The  rule  in  respect  to  the  Ijonndary  of  property  adjoining  rivers 
which  are  not  navigable  by  the  common  law,  or  rivers  above  tide- 
water, is  different  from  that  which  prevails  in  respect  to  rivers 
below  the  ebb  and  flow  of  the  tide.  At  common  law  a  riparian 
proprietor,  bounded  by  a  stream  above  the  ebb  and  flow  of  the 
tide,  though  navigable  in  part,  owns  the  land  to  the  center  or' 
thread  of  the  stream,  and  the  public  have  the  right  to  use  the 
stream  for  the  purposes  of  navigation ;  but  in  otlier  respects  the 
right  of  the  proprietor  to  the  soil  is  perfect.  In  other  words,, 
opposite  riparian  proprietors,  on  a  stream  in  which  the  tide  does 
not  ebb  and  flow,  own  I'espectively  to  the  center  of  the  stream ; 
but  neither  can,  by  constructing  docks  or  making  excavations  on 
his  side,  abridge  the  exercise  of  the  rights  of  the  opposite  owner 
( Wall:er  v.  Shejmrdso?!.^  4  Wis.  12.,  486) ;  that  is  to  say,  where  a 
private  or  a  tideless  river  separates  the  lands  of  two  riparian 
owners,  the  line  of  demarkation  between  the  two  estates  is  pre- 
sumed, jprima  facie,  to  coincide  with  the  Qnedium  filum  of  the 
stream  (  Wright  v.  Iloioard,  1  Simons  &  Siuarfs  JR.,  203  ;  Schultes 
on  Aquatic  Rights,  136). 

It  was  observed,  by  Lord  Cran worth,  in  a  leading  case  in  Eng- 
land, that  "  the  soil  of  the  alveus  is  not  the  common  property  of 
the  two  proprietors,  but  the  share  of  each  belongs  to  him  in  seve- 
ralty ;  so  that  if,  from  any  cause,  the  course  of  the  stream  should 
he  permanently  diverted,  the  proprietors  on  either  side  of  the  old. 
;hannel  would  have  a  right  to  use  the  soil  of  the  alveus,  each  of 
them,  up  to  what  was  the  mediuyn  filum  aquw,  in  the  same  way 
as  they  were  entitled  to  the  adjoining  land  "  {Bichett  v.  3lor)-is,  1 
Zaw  M.,  Sc.  App.,  58).  And  the  Supreme  Judicial  Court  of 
Massachusetts  has  recently  held  that  if  the  course  of  a  river,  not 
navigable,  changes  and  cuts  off  a  point  of  land  on  one  side,  making 
an  island,  such  island  still  b^ongs  to  the  original  owner.  In  such 
7 


50  LAW   OF  BOUXD ARIES. 

ease,  if  the  old  bed  of  the  river  (being  gradually  diverted  bv  the 
current)  fills  up,  and  new  land  is  formed,  such  newly-formed  land 
belongs  to  the  o])posite  riparian  proprietors,  respectiveh',  to  the 
thread  of  the  old  river ;  and  if  new  land  be  formed  in  the  river  above 
such  island,  independent  of  the  island,  and  not  by  a  slow,  gradual 
and  insensible  accretion  to  it,  such  new  land  above  belongs  to  the 
opposite  riparian  proprietors,  respectively,  to  the  Jiluin  aquce,  or 
thread  of  the  river.  The  thread  of  the  river,  in  such  case,  would 
be  the  medium  line  between  the  shores  or  natural  water-line  ou 
each  side  at  the  time  the  new  land  was  formed,  without  regard  to 
the  channel  or  deepest  part  of  the  stream  {Trustees  of  Ilo^hlns 
Academy  v.  Dickinson^  9  Gushing' s  B.,  544). 

Chancellor  Kent  lays  down  the  rule  that  grants  of  land,  bounded 
on  rivers,  or  upon  the  margins  of  the  same,  or  along  the  same, 
above  tide-water,  carry  the  exclusive  right  and  title  of  the  grantee 
to  tlie  center  of  the  stream,  unless  the  terms  of  the  grant  clearly 
denote  the  intention  to  stop  at  the  edge  or  margin  of  the  river; 
and  the  public,  in  cases  where  the  river  is  navigable  for  boats  and 
rafts,  have  an  easement  therein  or  a  right  of  passage,  subject  to 
the  jus  piiblimim,  as  a  public  highway  (3  Kerifs  Com.,  ^th  ed., 
515,  516).  This  is  the  common-law  doctrine,  and  is  recognized  in 
most  of  the  States.  It  has  been  held,  even  in  the  case  of  the 
Mississippi  river,  that  the  common  laM',  and  not  the  civil  law, 
governs,  and  the  magnitude  of  tlie  river  does  not  aifect  it.  It 
was  declared  that  the  Mississippi  river,  above  the  ebb  and  flow  of 
the  tide,  is  not  navigable  in  the  sense  of  the  common  law,  and 
tlie  rights  of  the  riparian  owner  go  to  the  middle  of  the  river; 
that  the  act  of  Congress,  establishing  the  Mississippi  river  as  the 
western  boundary  of  the  Mississippi  territory,  and  adopting  the 
common  law  for  the  government  of  that  territory,  fixed  the  mid- 
dle of  the  river  as  the  boundary  line ;  and  that  the  rights  of  ripa- 
rian proprietors  on  the  east  shore  of  the  Mississippi,  therefore, 
must  be  determined  by  the  common  law.  Nor  are  their  rights  as 
to  the  soil  therein,  or  to  the  use  of  the  bank  of  the  river,  aflected 
by  the  act  of  Congress  making  that  river  '"  a  common  highway, 
free  to  every  citizen,  without  tax  or  duty  ;"  so  decided  in  the 
same  case  {Morgan  v.  Beading,  3  Smedes  ct'  Marsh.  B.,  366). 

The  question  has  been  much  discussed  as  to  whether  the  rule 
of  the  common  law  prevails  in  this  country,  that  grants  of  lands, 
bounded  on  rivers  and  streams  above  tide-water,  extend  usqu6 


LAM)S   ON   UiXNAVIGABLE  RIVERS.  51 

filum  aquce I  but,  as  before  intimated,  it  has  been  decided  in  most 
of  the  States  that  sucli  is  tlie  hxw  here.  A  well  considered  case 
came  before  the  old  Supreme  Court  of  the  State  of  New  York, 
involving  the  right  to  the  soil  under  the  waters  of  the  Mohawk- 
river,  near  where  it  falls  into  the  Hudson.  The  court  held  that 
the  soil  under  the  river  belongs  to  tlie  owners  of  the  adjoining 
banks ;  and  the  case  was  then  taken  to  the  Court  of  Errors  on 
writ  of  error,  where  tlie  whole  question  was  ably  discussed  by 
counsel,  and  elaborately  considered  by  different  members  of  the 
court ;  but  the  decision  was  based  upon  tlie  construction  of  the 
grant  under  which  the  claimant  held  the  adjoining  bank,  and  the 
question  was  thus  left  open  as  to  whether  the  common-law  rules 
of  property,  as  to  the  fresh-water  rivers  of  the  State,  are  applica- 
ble here  or  not.  Tracy  and  Beardsle^^,  senators,  argued  with  great 
ability  that  the  great  fresh-water  streams  of  this  country  are  not 
subject  to  the  principle  of  individual  appropriation,  as  applied  by 
the  common  law  of  England ;  while  the  late  chancellor  of  the 
State  maintained  that  the  doctrine  of  the  common  law,  vesting 
the  sovereign  with  the  ownership  as  well  as  the  jurisdiction  of 
tide-water  streams,  making  other  large  rivers  public  only  as  to 
their  nses,  but  private  as  to  all  proprietary  interests,  and  regard- 
ing the  ebb  and  flow  of  the  tide  as  the  criterion  of  original  or  pre- 
scriptive rights  of  property,  ^vas,  at  the  period  of  our  separation 
from  the  British  crown  (as  it  still  is),  the  undisputed  law  of  Eng- 
land, is  the  recognized  doctrine  of  this  country ;  and  that  the 
connnon  law  of  England,  since  the  occupation  of  the  country  by 
the  English,  has  been  the  law  of  the  land  {The  Canal  Ajypraisers 
V.  The  People,  17  ^Yend.  R.,  571,  574,  590). 

At  a  later  date,  however,  the  question  was  squarely  presented 
to  the  late  Court  of  Errors  of  the  State  of  New  York,  and  it  was 
decided  that  fresh-water  rivers,  to  the  middle  of  the  stream,  belong 
to  the  owners  of  the  adjacent  banks.  But  if  they  are  navigable, 
the  right  of  the  owners  is  subject  to  the  servitude  of  the  puWiG 
interest  for  passage  or  navigation.  Verplanck,  senator,  said : 
"  If  this  is  (as  I  think  it  is)  still  an  open  question,  I  must  then 
hold  that  the  ancient  rule  of  proprietary  interest  in  rivers  and 
streams,  when  undisturbed  by  positive  grant  or  prescription,  and 
the  flow  of  the  tide  as  the  criterion  of  that  interest,  either  in  the 
people  or  in  individuals,  whatever  objection  there  may  be  to  the 
policy  of  the  rule,  having  ^en  part  of  the  common  law  at  the 


52  LAW  OF  BOUNDARIES. 

erection  of  the  State  into  an  independent  sovereignty,  was  adopted 
with  the  rest  and  remains  the  law  till  repealed. 

"  If  it  be  argued,  as  was  eloquently  and  ably  done,  that  the  reason 
of  the  rule  does  not  apply  to  the.  rivers  of  this  State,  and  that  the 
rule  is  not  only  arbitrary  but  impolitic,  I  must  reply,  that  we  have 
no  proof  whatever  that  this  rule  of  the  common  law  was  ever 
abrogated  or  rejected  by  our  colonial  legislature  or  judiciary — that 
by  our  successive  State  Constitutions  we  adopted  so  much  of  the 
common  law  of  England  as  formed  the  law  of  the  colony  in  1775 
{J}>r.  Y.  Constitution  of  1777,  art.  35 ;  Amended  Const.,  art.  S, 
§  13)  as  '  the  law  of  the  State,  subject  to  such  alterations  and  pro- 
visions as  the  legislature  shall,  from  time  to  time,  make  concern- 
ing the  same.'  We  then  took  that  body  of  laws  as  a  whole,  and 
as  being  in  the  main  suited  to  our  wants  and  habits,  though  prob- 
ably recjuiring  legislative  alteration  as  to  many  of  its  rules  and 
doctrines  unsuited  to  our  government  and  condition.  These  were 
left  to  be  amended  by  legislative  enactment  and  not  by  judicial 
repeal.  *  ^  *  I  am  therefore  of  opinion  that,  by  the  com- 
mon law  still  remaining  the  unrepealed  law  of  this  State,  the  legal 
title  to  the  portion  of  the  Genesee  river  where  the  waters  were 
temporarily  diverted  by  the  construction  of  the  aqueduct  was  in 
the  proprietors  of  the  adjacent  banks,  subject  only  to  the  uses  of 
navigation  so  far  as  those  waters  were  capable  of  it,  and  to  the 
riglits  of  other  proprietors,  above  or  below,  to  the  use  of  the 
stream"  {The  Commissioners  of  the  Canal  Fund  v.  Kemjyshall, 
26  Wend.  E.,  404,  417,  418). 

So  it  is  very  evident  that  the  question  depends  essentially  as  to 
whether  the  common  law  of  England  upon  the  subject  is  recog- 
nized as  the  law  of  the  State  or  not.  If  it  is,  then  the  rule  is  as 
lias  been  stated ;  if  it  is  not,  the  rule  may  be  different.  Streams 
of  water  have  been  divided  into  several  distinct  classes  :  1.  Arms 
of  the  sea,  in  which  the  tide  ebbs  and  flows.  These  belong  to 
the  public.  2.  Streams  whicii  are  navigable  for  vessels,  boats, 
lighters,  and,  as  it  has  also  been  held,  for  rafts.  In  these  the  peo- 
ple have  the  right  of  eminent  domain  for  the  purposes  of  naviga- 
tion and  commerce;  and  the  riparian  owner  has  only  a  qualified 
right  to  the  bed  of  the  stream,  and  the  water  which  flows  over  it, 
subordinate  to  the  superior  rights  of  the  public.  To  this  clas? 
may,  perhaps,  be  added  such  streams  as  have  been  declared  by 
statute  to  be  public  highways.     3.  Streams  whicli  are  so  small, 


LANDS   ON   UNNAVIGABLE  RIVERS.  53 

sliallow  or  rapid,  as  "  not  to  afford  a  passage  for  thelliufs  people,'' 
as  Lord  Hale  expresses  it ;  such  streams  as  are  not  navigable  for 
boats  or  vessels  or  rafts.     These  are  altogether  private  property. 
The  Hudson  river  has  been  said  to  furnish  an  example  of  each  of 
these   classes  of  streams,  in  different  parts  of  its  course.     That 
part  of  its  course  iu  which  the  tide  ebbs  and  flows  belongs  exclu- 
sively to  the  public.     Another  portion  is  navigable  for  vessels  and 
boats  ;  and  in  that  the  riparian  owner  holds  a  qualified  property 
subject  to  the  public  use.     Another  portion  higher  up  is  not  navi- 
gable at  all,  and  that  is  private  property.     Prima  facie,  all  above 
the  ebb  and  flow  of  the  tide,  the  adjoining  proprietors  own  the 
soil   under  the  waters    of  tha    river,  although    the    rule    may  be 
changed  by  evidence,  as  has   been    before  shown.     This   is   the 
doctrine  adopted  by  the  courts  of  most  of  the  American  States. 
In  such  cases  the  courts  uniformly  consider  the  terra  'Miavigable  " 
as  technical  when  applied  to  rivers,  and  that  fresh-water  rivers 
above  the  flow  of  tide  are  not  navigable  within  the  meaning  of 
the  common  law.     Hence  they  assert  and  carry  out  the  principle, 
that  where  lands  are  owned  by  the  same  individual  on  each  side 
of  a   fresh-water   river,  he    owns    the   bed    of  the   river,   and  if 
bounded  on  one  side  of  the  river  he  owns  to  the  center.     This  is 
certainly  the  doctrine  in  regard   to  individuals  as  between  each 
other,  and  the  highest  courts  of  several  of  the  States  have  held 
that  the  same  doctrine  applies  in  all  cases  where  the   State  is  a 
party,  except  in  those  instances  where  the  State,  in  granting  lauds 
on  navigable  fresh-water  rivers,  or  even  those  not  navigable,  niny 
have  studiously  avoided  granting  the  river  itself  or  the  bed  of  the 
river,  anticipating  that  the  same  might  be  wanted  for  public  pur- 
poses.    The  States,  however,  are  by  no  means  unanimous  in  respect 
to  the  rule.     For  example,  the  courts  of  Pennsylvania  have  long 
since  declared  and  held,  that  the  great  rivers  of  that  State  are  not 
subject  to  the  common-law  rule,  that  owners  on  the  banks  have 
the'  right  of  soil  and  the  right  of  fishing  to  the  middle  of  the 
streani.     In  other  words,  it  is  held  that  the  commondaw  doctrine, 
that  fresh-water  rivers  belong  to  the  owners  of  the  banks,  is  not 
applied  to  the  Susquehanna  and  other  large  rivers  of  Pennsyl- 
vania.    Such  rivers  are  declared  to  belong  to   the  State,  and  no 
exclusive  rights  of  fishuig  have  been  granted  by  the  State   to  the 
owners  along  their  banks  {Carson  v.  Blazee,  2  Binneifs  R.,  475 ; 
Shrunk  v.  Schwjndll  Company,  14  Senj.  cfe  RawUs  R.,  71).     And 


54  LAW   OF  BOUNDARIES. 

it  lias  been  especially  declared  that  all  below  liigh-water  mark,  in 
the  channel  of  the  Susquehanna,  is  a  public  highway,  and  that  the 
State  may  improve  it  by  damming  or  otherwise  ;  and  if  a  spring 
below  high-water  mark  ^s  covered  by  such  improvements,  the 
owner  is  not  entitled  to  damages  (Commonwealth  v.  Fisher,  1 
Penn.  B.,  462). 

It  has  been  quite  recently  held  by  the  Supreme  Court  of  the  State 
of  Pennsylvania  that  all  rivers  and  streams  of  water  that  are  sub- 
ject to  tides,  or  capable  of  being  navigated  in  the  common  sense  of 
the  term,  in  such  State  are  treated  as  navigable  ;  and  that  grants  of 
the  adjoining  soil  are  not  usque  adjiluin  viedhi'in  aqucBj  but  only  to 
low-water  mark,  the  soil  and  water  formed  between  the  lines  that 
describe  low  water  being  retained  as  eminent  domain  for  the  use 
of  all  citizens,  and  that  the  right  of  navigation  in  all  such  navi- 
gable waters  is  the  paramount  public  right  of  every  citizen  {Flan- 
agan V.  Philadelphia,  42  Penn.  P.,  219).  And  in  a  niore  recent 
case,  the  same  court  held  that  the  Monongahela  river  at  Pitts- 
burg is,  by  the  settled  law  of  Pennsylvania,  navigable ;  and  that 
the  soil  in  the  bed  of  the  river  up  to  low-water  mark,  and  the 
river  itself,  are  as  much  the  property  of  the  State,  as  in  England 
a  tide- water  river  is  the  property  of  the  crown  {Monongahela 
Bridge  ComiKiny  v.  Kirh,  46  Penn.  R.,  112).  In  some  of  the 
Pennsylvania  cases  the  doctrine  underwent  a  very  elaborate  dis- 
cussion, and  it  was  declared  that  the  great  rivers  of  America  are 
so  different  from  those  of  England,  that  the  same  dehnition  of  a 
navigable  river  cannot  properly  be  applied  to  both,  and  the  courts 
seem  to  be  unanimous  in  the  opinion  that  the  English  distinction, 
that  the  character  of  navigability  depended  upon  the  quality  of 
the  water,  fresh  or  salt,  is  wholly  inapplicable  to  the  principal 
rivers  of  that  State ;  that  the  only  test  was,  whether  the  river 
was  or  not  actually  navigable  (  Vide  also  Bird  v.  Smith,  8  Watts'' 
P.,  43-i;    Union  Canal  Com.pany  v.  Landis,  9  ih.,  22S). 

So,  also,  in  the  State  of  Alabama  the  courts  hold  that  every 
water-course  in  the  State,  which  is  suitable  for  the  ordinary  pur- 
poses of  navigation,  whether  above  or  below  tide-water,  is  a  public 
highway ;  and  that  the  owners  of  land  bounded  thereon  have  no 
right  of  soil  to  the  bed  of  the  stream  below  low-water  mark  {Bul- 
lock V.  Wilson,  2  Porter's  P.,  436).  But  the  courts  hold  that  the 
071US  is  on  the  party,  claiming  it  to  be  so,  to  prove  that  a  stream 
above  tide-water  is  navigable,  and,  therefore,  open  to  the  public. 


LANDS   ON   UNNAVIGABLE  RIVERS.  5 J 

And,  upon  this  point,  the  (luestions  dechired  to  be  are  whether  it 
isiit  for  vahiable  floatage  ;  whether  the  public  generally  are  inter- 
ested in  transportation  on  it ;  whether  its  capacity  for  floatuig 
continues  long  enough  to  make  it  beneficially  useful  to  the  public, 
and  to  iinportant  public  interests;  whether  it  has  been  generally 
used  for  important  floatage ;  how  it  has  been  treated  by  govern- 
ment surveys;  whether  it  will  be  valuable  for  future  public  use; 
and  that  whether  a  stream  is  navigable  is  a  question  of  law,  after 
the  facts  as  to  these  points  are  ascertained  {Rhodes  v.  Otis,  33 
Ala.  12.,  578).     On  these  principles  the  Supreme  Court  of  the 
State  has  held  that  Murder  creek,  near  Fort  Crawford,  in  Cone- 
cuh county  in  that  State,  is  not  a  navigable  stream;  it  appearing 
that  such  creek  is  not  affected  by  the  ebb  and  flow  of  the  tide,  has 
never  been  declared  a  public  highway  by  legislative  authority, 
and  was  not  treated  as  a  navigable  stream  by  the  United  States 
engineers;  although  it  appeared  in  evidence  that  within  the  last 
twenty  years  keel   boats,  loaded  with  cotton,  had  been   several 
times' floated  down  it  during  the  winter  season  {Ellis  v.  Carefj, 
30  Ala.  R.,  725).     It  may  be  also  interesting  to  note  that  the 
game  court  has  held  that  the  bank  of  a  river  is  that  space  of  rishig 
ground  above  low-water  mark  which  is  usually  covered  by  high 
water,  and  the  term,  when   used  to  designate  a  precise  line,  is 
vao-ue  and  indefinite  {Howard  v.  Ingersoll,  17  Ala.  R.,  780). 

The  Circuit  Court  of  South  Carolina,  at  an   early  day,  held, 
after  stating  the  rule  of  the  common  law,  that  in  England  no  river 
is  considered  navigable  except  where  the  tide  ebbs  and  flows,  that 
that  rule  would  not  do  in  that  State,  where  the  rivers  are  naviga- 
ble several  hundred  miles  above  the  flowing  of  the  tide.     But  it 
was  declared,  nevertheless,  that  the  claims  of  the  owners  of  land 
adjacent  to  a  river  extend  to  the  center  of  the  bed  of  the  stream, 
subject  to  the  use  the  public  may  make  of  the  waters  for  the  pur- 
poses of  navigation  {Gates  v.    Wadlington,  1  IlcCord's  R.,  580). 
And  the  courts  of  the  same  State  held,  at  a  much  later  day,  that 
a  grant  or  conveyance  of  land  bounded  by  a  river,  not  technically 
na^'vigable,  extends  to  the  medium  filum  aqxm,  unless  the  terms 
used^in  the  writing  clearly  denote  the  intention  to  stop  short  of 
that  line  {McCullough  v.  Wall,  4  Richardson's  R.,  68).     It  seems 
that  Pond  Branch,  in  the  State  of  South  Carolina,  by  an  act  ot  the 
legislature,  passed^  1853,  became  a  navigable  stream  {Witt  x 
Jefcoat,  10  Rich.  Laio  R.,  388). 


56  LAW  OF  BOUyDARIES. 

In  the  State  of  North  Carolina  the  Supreme  Court  has  repeat- 
edly held  that  the  ebb  and  How  of  the  tide,  according  to  the  rule 
of  the  common  law,  is  no  rule  for  determining  whether  a  river  is 
navigable  or  not;  but  that  waters  which  are  sufficient  in  fact  to 
afford  a  common  passage  for  people  in  vessels  are  to  be  taken  as 
"navigable;"  and  in  one  case  one  of  the  judges,  in  commenting 
upon  the  applicability  of  the  common-law  rule  to  the  navigable 
waters  of  that  State,  pronounced  it  inapplicable;  and  remarked 
that,  by  the  rule  of  the  common  law,  Albemarle  and  Pimlico 
sounds,  which  are  inland  seas,  would  not  be  deemed  "navigable" 
waters,  and  would  be  the  subject  of  private  property ;  but  that,  in 
fact,  it  made  no  difference  whether  there  is  or  ever  was  any  tide 
in  Albemarle  sound  (  Vide  Collins  v.  Benhury,  3  IredeWs  li., 
277;  Wilson  v.  Forbes,  2  Dev.  i?.,  30;  Ingrahaiti  v,  Threadgill, 
3  ih.,  59). 

The  Supreme  Court  of  Tennessee  holds  that  the  owner  of  land 
on  a  navigable  stream  in  that  State,  above  tide-water,  has  the  title 
to  ordinary  low-water  mark,  and  not  to  the  center  of  the  stream. 
Judge  Turley,  in  delivering  the  opinion  of  the  court  in  one  case, 
said:  "All  laws  are,  or  ought  to  be,  an  adaptation  of  principles 
of  action  to  the  state  and  condition  of  a  country,  and  to  its  moral 
and  social  position.  There  are  many  rules  of  action  recognized 
in  England  as  suitable  which  it  would  be  folly  in  the  extrenie,  in 
countries  differently  located,  to  recognize  as  law;  and,  in  our 
opinion,  this  distinction  between  rivers  '  navigable'  and  '  not  navi- 
gable,' causing  it  to  depend  upon  the  ebbing  and  flowing  of  the 
tide,  is  one  of  them.  The  insular  position  of  Great  Britain,  the 
short  curves  of  her  rivers,  and  the  well-known  fact  that  there  are 
none  of  them  navigable  above  tide-water  but  for  very  small  craft, 
well  warrants  the  distinction  there  drawn  by  the  common  law. 
But  very  different  is  the  situation  of  the  continental  powers  of 
Europe  in  this  particular.  Their  streams  are,  many  of  them, 
large  and  long,  and  navigable  to  a  great  extent  above  tide-water; 
and,  accordingly,  we  find  that  the  civil  law,  which  regulates  and 
governs  those  countries,  has  adopted  a  very  different  rule"  {Elder 
V.  Burns,   6  Tlampli.   /?.,  358,  36G ;  Stuart  v.  Clark,  2  Su)a7i'i 

The  courts  of  the  State  of  Mississippi,  at  an  early  day,  in  the  cas€ 
before  referred  to  declared  that  the  common  law,  and  not  the  civi] 
law,  governs  in  the  case  of  the  rivers  of  that  State,  and  that  the  mag 


LAXBS   ON   UXXAVIGABLE  RIVERS.  57 

nitude  of  the  river  does  not  affect  the  question  ;  that  the  Mississippi 
river,  above  the  ebb  and  flow  of  the  tide,  is  not  navigable  in  the 
sense  of  the  common  law,  and  the  right  of  the  riparian  owner  goes 
to  the  middle  of  the  river,  subject,  of  course,  to  a  right  uf  passage 
in  the  public  {Morgan  v.  Heading,  3  Smedes  (&  Marsh.  It.,  336). 
But  at  a  much  later  date,  the  High  Court  of  Errors  and  Appeals, 
of  the  same  State,  limited  the  doctrhie  to  the  cases  of  private  indi- 
viduals, and  declared  that  it  was  not  easy  to  understand  how  a 
man   can  be  said  to  have  a  property  in  water,  light  oi-  air,  of  so 
fixed  and  positive  a  character  as  to  deprive  the  sovereign  power 
of  the  right  to  control  it  for  the  public  good  and  the  general  con- 
venience.    It  was  said  that  such  a  right  exists  as  to  individuals, 
and  it  cannot  be  interfered  with  by  them.     But  that  the  State,  by 
virtue  of  her  right  of  eminent  domain,  has  the  paramount  right  to 
control  and  dispose  of  everything,  within  her  limits,  which  is  not 
absolute  and  exclusive  private  property,  to  the  promotion  of  the 
public  good,  and  even  to  take  private  property  for  the  same  pur- 
pose,   on    rendering  just    compensation ;    and   it    was    expressly 
declared  that  the  doctrine  that  the  rule  of  the  common  law  is  not 
applicable  to  our  large  public  rivers  used  for  navigation,  —  that  the 
rio:hts  of  the  owners  of  the  lands  bounded  by  such  streams  are 
subordinate  to  the  right  and  power  of  the  State  to  use  and  appro- 
priate them  to  the  public  good  in  promotion  of  navigation,    and 
that  sucli  rivers,  whether  tide- waters  or  not,  are,  as  to  the  juris- 
diction  and  power  of  the   State,  to  be   considered  as   navigable 
i-ivei-s,  —  is  supported  by  sound  reason,  and  should  be  established  as 
the  law  of  the  land.     It  was  said  that  whilst  the  right  of  property 
exists  in  the  individual,  in  relation  to  the  streams  of  water  exclu- 
sively his  own,  such  as  springs  or  small  water-courses  in  the  inte- 
rior of  his  lands,  and  bounded  by  them  on  both  sides,  and  whilst  it 
may  exist  in  reference  to  public  rivers,  as  against  the  interference 
of  private  individuals,  it  cannot  be  admitted  to  prevail  as  to  public 
rivers  and  highways  used  for  navigation,  against  the  paramount^ 
jurisdiction  of  the  State  {Commissionei^s  of  Ilomoehitio  River  v. 
Withers,  29  Miss.  R.,  21). 

A  case  came  before  the  Supreme  Court  of  Iowa,  at  an  early  day 
in  the  history  of  the  State,  in  which  the  whole  subject  under  con- 
sideration was  learnedly  discussed  and  the  authorities  reviewed. 
Judge  Woodwam,  who  delivered  the  opinion  of  the  court,  stated 
three  propositions  which   he  deemed   to  be  established  :    First 


58  LAW   OF  BOUNDARIES. 

Although  the  ebb  and  flow  of  the  tide  was,  at  common  Liw,  the 
most  usual  test  of  navigabilitj',  jet  it  was  not  necessarily  the  only 
oi%e.  Second.  However  the  truth  may  be  upon  the  above  propo- 
sition, the  test  is  not  applicable  to  the  Mississippi  river.  Third. 
The  common  consequences  of  navigability  attach  to  the  legal  navi- 
gability of  the  Mississippi.  After  examining  the  authorities  upon 
the  first  point,  the  judge  says  :  "  However  the  truth  may  be  upon 
the  first  proposition,  the  flow  and  reflow  of  the  tide  is  not  appli- 
cable to  the  Mississippi  as  a  test  of  its  navigability.  And,  third, 
the  common-law  consequences  of  navigability  attach  to  the  legal 
navigability  of  the  Mississippi  river.  The  arguments  and  autho- 
rities upon  these  two  propositions  being  in  a  great  measure  iden- 
tical, they  must  be  considered  together.  The  thought  has  been 
before  suggested,  that,  as  a  real  and  virtual  test,  the  tide  is  a  merely 
arbitrary  one,  and  is  not  supported  by  reason  ;  since  many  waters 
where  the  tide  flows  are  not  in  fact  navigable,  and  many  where  it 
does  not  flow  are  so.  It  is  navigability  in  fact  which  forms  the 
foundation  of  navigability  in  law;  and  from  the  fact  follows  the 
appropriation  to  public  use,  and  hence  its  publicity  and  legal  navi- 
gability. It  is  true  that  this  legality  attaches  to  some  waters 
which  do  not  possess  the  requisite  quality  in  fact ;  but  this  arises 
from  their  relation  to  the  high  seas  and  to  admiralty,  and  from  the 
difliculty  of  making  our  bounded  exceptions.  It  is  impossible  to 
bring  the  mind  to  an  approval,  when  we  attempt  to  apply  it  to  the 
rivers  of  this  country,  stretching  up  to  3,000  miles  in  extent, 
flowing  through  or  between  numerous  independent  States,  and 
bearing  a  commerce  which  competes  with  that  of  the  oceans  —  a 
test  which  might  .be  applicable  to  an  island  not  so  large  as  some  of 
our  States,  and  to  streams  whoso  utmost  length  was  less  than  300 
miles,  and  whose  outlet  and  fountain,  at  the  same  time,  could  be 
within  the  same  State  jurisdiction.  In  England,  or  in  Great 
Britain,  the  chief  rivers  are  the  Severn,  Thames,  Kent,  Ilumber, 
and  Mersey ;  the  latter  of  which  is  about  fifty,  and  the  first  about 
300  miles  in  length,  and  of  this  (the  Severn)  about  100  miles  eon- 
Bists  of  the  British  channel.  The  world-renowned  Thames  has 
the  diminutive  proportions  of  200  miles ;  and  of  even  these 
lengths  not  the  whole  is  navi^ible.  Thus  it  will  be  seen  that  the 
chief  rivers  of  srood  old  Euii-land  i-ano;e  in  extent  with  our 
Connecticut,  Merrimac,  Hudson,  Allegany,  Monongahela,  Cfedar, 
Iowa  and  Des  Moines,  and  bear  a  proportion  of  one  to  twenty 


LANDS   ON   UNNAVIGABLE  EIVERS.  59 

when  compared  with  the  greater  rivers  of  this  continent."  And 
the  court  lield  that  a  riparian  owner  has  not  such  property  in  or 
possession  of  a  sand-bar  below  high-water  mark  in  the  Mississippi 
river,  though  within  the  medium  fit  am  (Kjuce,  as  will  enable  him 
to  maintain  trespass  against  one  removing  the  sand  ;  though  he 
may  have  some  rights  in  the  premises,  peculiar  to  himself  and  not 
common,  for  the  violation  of  which  an  indictment  or  action  on  the 
case  might  lie,  and  it  was  declared  that  if  the  riparian  owner  does 
not  own  to  the  medium  filum  aquce^  he  owns  only  to  high-water 
mark,  though  doubtless  witli  some  qualified  rights  to  low-water 
line  {MoMcuius  v.  Ganiilchael,  3  Clarice's  li.,  1).  And  in  a  later 
case  the  same  court  held,  that  the  proprietor  of  land  upon  the  bank 
of,  and  adjacent  to,  the  Mississippi  river  does  not  own  to  the  mid- 
dle of  the  main  channel  of  the  river,  nor  to  low-water  mark,  but 
to  high-water  mark  only ;  that  is,  he  owns  to  the  edge  of  the 
bank,  and  the  whole  bed  of  the  river  is  in  the  public  {Ilaujht  v. 
Keokuk,  4  Iowa  i?,,  199). 

The  doctrine  of  the  common  law  is  not  fully  recognized  in  the 
State  of  Ohio.  The  late  Mr.  Justice  McLean,  many  years  ago,  care- 
fully considered  the  doctrine  in  a  case  before  him  in  the  Circuit 
Court  of  the  United  States,  wherein  the  controversy  was  in  relation 
to  the  rights  of  the  riparian  owner  upon  the  Ohio  river.  The  learned 
justice  said  :  "  We  apprehend  that  the  common-law  doctrine  as  to 
the  navigableness  of  streams  can  have  no  application  in  this  country, 
and  that  the  fact  of  navigableness  does  in  no  respect  depend  upon 
the  ebb  and  flow  of  the  tide.  Where  a  stream  which  is  clearly  not 
navigable  forms  the  boundaries  of  proj)rietors  on  each  side  of  it, 
under  the  common  law  each  may  claim  to  the  middle  of  the  stream. 
But  this  right  cannot  be  exercised  to  the  injury  of  other  rights  of 
the  same  nature.  On  navigable  streams,  the  riparian  rights  cannot, 
we  suppose,  extend  generally  beyond  high-water  mark  "  {Bowman- 6 
Devisees  v.  Wathen,  2  Mg Leungs  R.,  376).  Of  course,  all  of  the 
rivers  in  or  bordering  upon  the  State  of  Ohio  are  tar  beyond  the 
influence  of  tide,  and  yet  the  most  of  them  are  regarded  as  navi- 
gable. The  Supreme  Court  of  tiie  State  has  declared  that  in 
Ohio  the  land  between  high  and  low-water  mark,  on  navigable 
rivers,  belongs  to  the  riparian  proprietors  {Bkmchard  v.  Porter, 
11  Oldo  R.,  138).  And  in  a  later  case  the  same  court  held,  that 
the  legislatolfe  cannot,  by  declaring  a  river  navigable  which  is  not 
so  in  fact,  deprive  the  riparian  proprietors  of  their  right  to  the 


CO  LAW   OF  BOUNDARIES. 

nse  of  the  water  for  hydraulic  and  other  purposes  without  render- 
ing them  compensation.  And  further,  that  he  who  owns  the  land 
on  both  sides  of  a  navigable  river  owns  the  entire  river,  subject 
only  to  the  easement  of  navigation  ;  and  he  who  owns  the  land 
upon  one  bank  only,  owns  to  the  middle  of  the  main  channel, 
subject  to  the  same  easement  ( Walker  v.  The  Board  of  Public 
Works,  16  Ohio  E.,  540 ;  vide  also  Gavlt  v.  Ghamhers,  3  Ham. 
i?.,  495). 

It  has  been  declared  by  the  Supreme  Court  of  Michigan  that 
the  common-law  rule,  that  those  rivers  only  are  subject  to  the 
servitude  of  the  public  interests  which  are  of  public  or  common 
use  for  carriage  of  boats  and  lighters,  and  for  transportation  of 
property,  has  been  enlarged  in  this  country,  and,  in  nearly  all  the 
States,  has  been  extended  so  as  to  be  adapted  to  the  necessities  of 
trade  and  commerce,  and  to  embrace  rivers  upon  which,  in  their 
natural  state,  there  is  capacity  for  valuable  floatage,  irrespective 
of  the  fact  of  actual  public  use  or  the  extent  of  such  use.  The 
fact  that  a  floatable  sti'eam  has  not  been  used  by  the  public,  or  has 
only  been  used  by  persons  following  a  particular  occupation,  does 
not  deprive  such  stream  of  its  public  character.  Although,  in 
some  of  the  States,  it  was  said,  usage  and  custom  have  been 
regarded  as  the  foundation  of  this  public  right  in  fresh  waters,  in 
the  new  States  of  the  Union,  from  necessity  and  the  nature  of 
things,  such  cannot  be  the  foundation  of  public  right.  The  true 
test  in  determining  the  right  of  public  use  in  fresh-water  streams, 
as  public  highways,  is  whether  a  stream  is  inherently  and  in  its 
nature  capable  of  being  used,  for  the  purposes  of  commerce,  for  the 
floating  of  vessels,  boats,  rafts  or  logs.  Where  a  stream  possesses 
such  a  character,  the  court  held,  the  easement  exists,  leaving  to 
the  owners  of  the  bed  all  other  modes  of  use  not  inconsistent  with 
it  {Moore  v.  Sanborne,  2  Mich.  li.,  519).  And  in  a  later  case 
the  same  court  declared  that  although,  in  England,  in  the  com- 
mon-law sense  of  the  term,  those  streams  only  are  navigable  in 
which  the  tide  ebbs  and  flows,  yet  all  rivers  and  streams  above 
the  ebb  and  flow  of  the  tide,  which  are  of  sufflcient  capacity  for 
useful  navigation,  are  public  rivers,  and  subject  to  the  same  gene- 
ral rights  which  the  public  exercise  in  highways  by  land,  and 
which  they  possess  in  navigable  waters.  But  it  was  held  that  the 
common-law  principle,  that  the  soil  under  such  tidcless  public 
rivers,  to  the  thread  of  the  stream,  is  in  the  owner  of  the  adjacent 


LAXDS   O.Y   UNXAVIOABLE  RIVERS.  61 

bank,  prevails  in  the  State,  and  is  applicable  to  the  Detroit  river 
{Loi'man  v.  Benson^  8  Mich.  It.,  18). 

The  Supreme  Court  of  Minnesota  has  recently  held  that  the  act 
of  Congress  of  May  IS,  1700,  providing  that  all  navigable  rivers, 
within  the  territory  to  be  disposed  of  by  that  act,  shall  be  deemed 
to  be  and  remain  public  highways,  is  merely  a  declaration  of  the 
common  law,  and  not  a  niodillcation  of  it.  And  it  was  further 
held  that  the  tact,  that  rivers  are  and  must  re;i:ain  public  high- 
ways, is  not  inconsistent  with  the  view  that  riparian  owners  have 
the  fee  of  the  bed  of  the  stream  {Schu7V)ieier  v.  St.  Paid,  etc., 
Railroad  Comjpany,  10  Minn.  IL,  82). 

In  the  State  of  Wisconsin  it  has  been  declared  that  a  riparian 
proprietor,  bounded  by  a  stream  above  the  ebb  and  flow  of  the 
tide,  but  navigable  in  part,  owns  the  land  to  the  centre  or  thread 
of  the  stream,  and  the  public  have  the  right  to  use  the  stream  for 
the  purposes  of  navigation ;  but  in  other  respects  the  right  of  the 
proprietor  to  the  soil  is  perfect  ( Walker  v.  Shejxirdson,  -i  Wis.  R., 
486).  But  in  a  later  case  the  doctrine  was  qualified,  to  the  extent 
of  declaring  that  purchasers  of  land  lying  on  the  banks  uf  a  stream 
above  the  ebb  and  flow  of  the  tide,  when  bounded  by  the  stream, 
ai'e  2)resiimed  to  run  to  the  centre  of  the  streim  {Mariner  v. 
Schulte,  13  Wis.  R.,  G92 ;  and  vide  Jones  v.  Peitihone,  2  ih.,  308). 

The  subject  under  consideration  has  ]-ecently  been  before  the 
Court  of  Appeals  of  the  State  of  New  York,  where  the  whole  doc- 
trine applicable  to  navigable  streams  was  elaborately  and  learnedly 
discussed  by  Davies,  J.,  who  argued  that  the  common-law  rules, 
determining  what  streams  are  navigable,  are  not  applicable  in  this 
country ;  and  it  was  held  that  the  Mohawk  river  is  a  navigable 
stream,  and  that  the  title  to  the  bed  of  the  river  is  in  the  people 
of  the  State.  After  examining  the  decisions  of  and  the  discussions 
in  the  courts  of  England  and  the  American  States  upon  the  topic 
at  great  length,  the  learned  judge  said  :  "  We  have  now  ascertained 
the  doctrine  of  the  common  law,  and  that  of  the  civil  law,  upon 
the  subject  now  under  consideration,  and  have  traced  the  same  to 
their  respective  sources.  We  have  seen,  in  applying  the  princi- 
ples of  the  common  law  to  the  waters  of  this  continent,  how  great 
has  been  the  embarrassment  of  courts  and  judges  and  text-writers ; 
how  variant  has  been  the  conclusions  reached  by  them,  and  how 
eontradictoTy  and  unsatisfactory  have  been  the  reasons  for  the 
results  arrived  at.     *      *      *     We  have  examined  carefully  the 


(32  i^TF  OF   BOUNDARIES. 

judicial  discussion  of  this  doctrine,  culminating  in  the  decision  by 
the  court  of  ultimate  appeal  in  this  State,  repudiating  its  applica- 
bility to  the  rivers  of  this  State,  and  establishing  the  latter  doc- 
trine of  the  civil  law"  {The  Peojple  v.  Tlie  Canal  Appraisers^  33 
N.  Y.  E.,  461,  499,  500).  The  same  doctrine  had  been  before 
held  by  the  present  Supreme  Court  in  a  case  involving  the  rights 
of  parties  to  navigate  the  Canisteo  river,  in  the  county  of  Steuben. 
Johnson,  J.,  who  delivered  the  opinion  of  the  court,  said :  "  That 
this  river  was  a  public  highway  at  common  law,  as  it  has  always 
been  understood  and  applied  in  this  country,  is  abundantly  estab- 
lished by  the  evidence  in  this  case.  Not  only  in  this  State,  but  in 
all  our  sister  States,  these  great  natural  channels  and  avenues  of 
commerce,  whenever  they  are  found  of  sufficient  capacity  to  float 
the  products  of  the  mines,  the  forests  or  the  tillage  of  the  country 
through  which  they  flow  to  market,  have  always  been  adjudged 
by  our  courts  to  be  subject  to  the  rights  of  passage,  independent 
of  legislation.  The  common  law  of  England  upon  this  subject, 
from  its  utter  want  of  fitness  and  adaptation  to  the  condition  of 
things  here,  in  our  extended  territory,  with  its  numerous  inland 
lakes  and  countless  streams,  caj)able  of  floating  the  products  of  the 
country  hundreds  and  thousands  of  miles  from  the  ebb  and  flow 
tide-water,  has  never  been  adopted;  or,  if  adopted,  it  has  been  in 
a  form  modified  and  improved  to  fit  the  condition  of  the  country 
and  the  wants  of  its  inhabitants"  {Browne  v.  Scojield,  8  Barlj. 
i?.,  239,  243,  244).  This  case  was  decided  over  twenty  years  ago, 
and  the  remarks  of  Judge  Johnson  are  eminently  sound  and  per- 
tinent;  and,  from  the  high  standing  of  the  learned  judge  as  a 
jurist,  they  have  had  great  influence  in  the  subsequent  judicial 
decisions  upon  the  subject  in  the  State.  Some  seventeen  years 
afterward  the  question  was  again  before  the  same  court  at  special 
term,  in  respect  to  the  rights  of  the  public  in  the  Seneca  river, 
when  E.  Darwin  Smith,  J.,  among  other  things,  said :  "  Rivers 
navigable  in  fact,  in  all  countries,  belong  to  the  public.  This  is 
so  by  the  common  law,  by  the  civil  law,  and  by  the  French  Code. 

*  *  *  The  State,  doubtless,  may  retain  the  bed  of  streams 
where  it  has  the  title ;  and  by  grant  or  patent,  in  express  terms, 
lias  bounded  the  grantee  by  the  shore,  as  it  did,  or  is  claimed  to 
have  done,  with  the  Mohawk  river.  In  such  case,  as  the  primary 
source  of  title,  it  grants  what  it  pleases,  and  conveys  no  more. 

*  *     *     By  declaring  a  stream  a  highway,  as  in  this  case,  and 


LANDS   ON  UNNAVIGABLE  RIVERS.  ()3 

as  has  been  done  with  most  of  the  streams  of  this  State,  whicli 
.  could,  at  any  time  and  in  any  stai^e  of  the  water,  be  navigated 
with  rafts,  floats  or  small  boats,  the  State  does  not  acquire  any 
title  to  the  bed  of  the  stream,  or  any  higher  or  other  riglit  than  it 
possesses  in  or  over  ordinary  highways  upon  land.  But  in  respect 
to  all  fresh-water  streams  which  are  navigable  in  fact,  like  the 
Niagara,  the  St.  Lawrence,  the  Genesee,  and  Oswego,  below  the 
falls,  in  these  rivers  the  rights  of  the  public  are  very  different. 
Such  streams  are  public  and  belong  to  the  State;  as  much  so, 
doubtless,  as  the  Hudson,  where  the  tide  ebbs  and  flows;  and  as 
much  so  as  the  great  lakes  in  the  interior  of  the  State"  {The 
People  V.  GiUchess,  48  Barh.  B.,  056,  666-668). 

It  has  been  recently  declared  by  the  Court  of  Appeals  of  the 
State  of  New  York  that  the  rule  of  the  common  hiw,  as  to  what 
degree  of  capacity  renders  a  river  navigable  in  fact,  should  be 
received  in  this  country,  with  such  modifications  as  will  adapt  it  to 
the  peculiar  character  of  our  streams,  and  the  commerce  for  which 
they  may  be  used  {Morgan  v.  King,  35  N.  Y.  Ji.,  451).  So,  it 
may  be  confidently  atiirmed,  that  the  doctrine  of  tlie  common  law 
iTpon  this  subject  is  not  now  fully  recognized  in  the  State  of  New 
York,  and  that  the  proprietors  of  lands  upon  some  of  the  rivers  , 
of  the  State  have  less  rights  in  tlie  bed  of  the  streams  than  was 
formerly  supposed.  But,  after  all,  the  question  depends  very  much 
upon  the  terms  of  the  grant  under  which  the  title  is  claimed;  and 
the  construction  put  upon  these  documents  will  be  considered  in 
a  subsequent  chapter.  Still,  it  is  of  great  importance  that  the 
general  law  upon  this  subject  should  be  well  understood,  as  that 
will  aflbrd  a  rule  by  which  tlie  rights  of  riparian  owners  must  in 
many  cases  be  determined.  The  doctrine  of  the  common  law  is 
fully  recognized  in  Massachusetts,  and,  perlmps,  a  majority  of  the 
Atlantic  States;  while  in  New  York,  and  the  most  of  the  remain- 
ing States,  it  is  substantially  discarded  or  received  with  modifica- 
tions and  limitations. 

It  may  be  added  that  the  rule,  in  respect  to  lands  bounded 
upon  a  natural  water-course,  applies  also  to  lands  bounded  upon 
an  artificial  one,  unless  the  same  has  been  changed  by  some  special 
custom  or  agreement.  Prima  facie,  the  law  which  governs  in 
the  case  of  the  one  will  apply  to  the  other  ( Vide  Tovmsend  v. 
McDonald,^  N.  Y.  P.,  381,  391 ;  DunBee  v.  Wilton  P.  P. 
Co.,  24  N.  H.  P.,  506 ;  New  Ipswich  Factory  v.  Batcheldor^  3 


64  LAW  OF  BOUNDARIES. 

ih.,  190).  It  is  sometimes  difficult  to  determine  whether  tlie 
object  of  the  boundary  is  an  artificial  water-course ;  but  when  it 
is  settled  that  the  object  upon  which  the  land  is  bounded  is,  in 
fact,  a  water-course^  there  is  no  distinction  between  natural  and 
artificial  ones.  In  either  case,  the  presumption  is  that  the  adja- 
cent proprietor  has  title  to  the  centre  of  the  stream,  although  this 
presumption  is  not  a  jpresuraptio  juris  et  de  jure,  but  yields  to 
evidence  displacing  the  grounds  on  which  it  rests. 


CHAPTER  Y. 

THE  LAW  OF  BOUNDARY  IN  RESPECT  TO  LAKES  AND  PONDS  —  RULES 
APPLICABLE  TO  LANDS  ADJOINING  THESE  BODIES  OF  FRESH  WATER 
WHERE  THE  BOUNDARY  IS  LIMITED  TO  THE  MARGIN  OF  THE  LAKE  OR 
POND. 

The  rule  of  the  common  law  of  England,  which  presumes  the 
boundary  line  of  two  estates  separated  by  a  tideless  navigable 
river  to  coincide  with  the  iiiedium  Jilum  of  the  stream,  does  not 
apply  to  the  great  fresh-water  lakes  of  this  country.  In  the 
language  of  the  late  Chancellor  Walworth,  in  an  opinion  delivered 
in  the  late  Court  of  Errors  of  the  State  of  New  York,  "  Our 
large  fresh-water  lakes  or  inland  seas  are  wholly  unprovided  for 
by  the  law  of  England.  As  to  these,  there  is  neither  flow  of  tide 
nor  tliread  of  the  stream ;  and  our  local  law  appears  to  have 
assigned  the  shores  down  to  the  ordinary  low-water  mark  to  the 
riparian  owners,  and  the  beds  of  the  lakes,  with  the  islands 
therein,  to  the  public"  {The  Canal  Commissioners  v.  The  People, 
5  ^Yend.  JR.,  423, 447).  And  it  was  declared  many  years  ago,  in  a 
case  before  the  Supreme  Court  of  Maine,  that  the  law  of  boundary, 
as  applied  to  rivers,  would  no  doubt  be  inapplicable  to  the  lakes 
and  other  large  natural  collections  of  fresh  water  within  the  ter- 
ritory of  the  State  {Flathorn  v.  Stinson,  1  Fairf.  R.,  238). 

The  Supreme  Court  of  the  State  of  New  Hampshire  has  held 
that  where  a  grant  runs  to  and  is  bounded  upon  a  lake  or  large 
body  of  standing  fresh  water,  the  grant  extends  only  to  the  water's 
edge  {State  v.  Gllmanton,  9  iV.  //.  E.,  461).  A  similar  doctrine 
has  been  expressly  laid  down  by  the  Supreme  Coui-t  of  Vermont ; 
and  it  was  held  that  the  rule,  that   a  grant  buu;uled   bv  a    la!<e 


LANDS   ON  LAKES  AND  PONDS.  65 

extends  to  low-water  line,  applies  to  creeks  which  are  suhstantially 
anus  or  inlets  of  the  lake  {Fletcher  v.  Phelps,  28    Vt.  J2.,  257). 
The  same  doctrine  is  recognized  in  the  State  ot  Maine;  but  it  was 
said,  in  one  case,  that  whether  a  lot  of  land   bounded  on  a  lake  is 
limited  to  the  margin  of  the  lake  or  not,  depends  on  the  manner 
in  which  the  lake  was  formed  {DiUinyJuini  v.  Smith,  3U  Jle.  12., 
370).     The    Supreme    Court    of  Illinois   has   held    that    riparian 
owners  on    Lake    Michigan    own    to    the    line    where    the    water 
usually  stands  when  unatFected   by  any  disturbing  cause  {Secmian 
V.  Smith,  24  III.  IL,  521).     But  in  respect  to  the  little  lake,  Musk- 
egan,  in  the  State  of  Michigan,  the  Supreme  Court  of  that  State 
has  held  that  the  riparian  owners  have  title  to  the  land  under  the 
water  so  far  out  into  the  lake  as  it  can  be  made  beneficial  for  pri- 
vate and  personal  use,  subject  to  the  paramount  public  rights  of 
navigation  and  the  incidents  thereto.     The  decision  seems  to  have 
been  based  on  the  assumption  that  neither  the  national  nor  State 
governments    have    ever   asserted   any  right    to    the   small  lakes 
within  the  boundary  lines  of  that  State  {Rice  v.  Ruddiman,  1.0 
Mich.  R.,  125).     The  Supreme  Court  of  the  United   States,  how- 
ever,haveheld  that  the  riparian  owner  on  the  great  lakes,  as  well  as 
on   tide-waters  has,  by  grant,  statute  or  immemorial  usage,  the 
right  to  b''"i-M  out  such -convenient  wharves  as  do  not  obstruct  the 
pubKo  nghts  of  navigation  {Button  v.  Strong,  1  Blade's  R.,  23). 
The  Supreme  Court  of  the  State  of  jS"ew  York  has  held,  that 
the  proprietors  of  land  lying  upon  Lake   Cliamplaiu,  unless  it  is 
otherwise  expressed  in  the  grants,  own  to  low-water  mark  ;  sub- 
ject to  a  servitude  to  the  public,  for  the  purposes  of  navigation,  up 
to  high-water  mark.     Hand,  J.,  delivered  the  opinion  of  the  court, 
and  observed  :  "  It  seems  pretty  well  settled,  in  this  State,  that  a 
grant  bounded  upon  a  river  generally,  above  tide-water,  takes  to 
the  thread  of  the  stream  ;  subject  to  the  servitude  of  the  public 
interest,  liable  to  the  use  of  the  public  for  the  purposes  of  navi- 
gation, where  susceptible  of  such  use.     There  are  some  opinions 
the  other  way,  especially  as  to  our  large  rivers ;  but   the  unani- 
mous opinion  of  our  highest  court,  in  the  case  of  The  Cominissioners 
of  the  Canal  Fund  v.  Kempshall  (26  Wend.,  404),  declares  the 
integrity  of  the  common-law  rule  on  this  subject  in  this  State,  and 
I  hope  may  be  considered  as  settling  the  question.    Perhaps  it  is- 
otherwise  if  tlfe  stream  be  a  national  boundary.     *     *     *     The 
rights  of  the  citizen,  as  well  as  those  of  the  State,  in  such  cases, 


■6(3  LAW  OF  BOUNDARIES. 

usually  depend  iu  some  degree  upon  treaty  ;  and  tlie  sovereign 
cannot  grant  beyond  the  bounds  of  his  territory.  However, 
where  the  thread  of  a  river  not  navigable  is  the  boundary  between 
two  States,  and  there  are  no  stipulations  in  relation  to  its  use,  per- 
haps there  is  no  reason  why  the  common-law  rule  should  not 
prevail. 

But  it  is  contended  that  this  principle  does  not  apply  to  our 
lakes.  And  certainly  it  would  seem  preposterous  to  make  the 
application  to  .the  full  extent.  *  *  *  Although  the  point  per- 
haps has  not  been  distinctly  decided  in  this  State,  some  of  our 
judges  and  jurists  have  not  hesitated  to  declare  an  opinion,  that 
the  law  in  relation  to  the  i-ights  of  riparian  owners  on  rivers, 
above  the  flux  and  reflux  of  the  tide,  does  not  prevail  in  respect 
to  our  large  lakes.  *  *  '^  Ko  doubt  the  extent  of  the  lake  or 
body  of  water  would  have  an  influence  in  the  construction  of  the 
grant.  A  navigable  river  would  not  probably  pass,  even  by  a 
grant  extending  on  both  sides  of  it,  unless  expressly  included  in  a 
conveyance  from  some  suflicient  authority.  Grants  of  land  in 
this  State  have  embraced  within  their  limits  ponds,  or  what  might 
be  called  small  lakes ;  many  of  which  have  also  been  included  in 
the  computation  of  the  amount  of  land  to  be  conveyed  by  the 
letters  patent.  But  there  can  be  no  question  in  regard  to  a  body 
of  water  of  the  size  of  Lake  Champlain,  which  covers  an 
area  probably  of  nearly  a  thousand  square  miles,  including 
its  islands,  and  is  navigable  nearly  150  miles.  The  same  principle 
would  embrace  Lake  Superior,  the  largest  body  of  fresh  water  in 
the  world  ;  and  larger  than  any  other,  salt  or  fresh,  not  an  arm 
of  the  sea  —  the  Caspian  excepted.  And  besides,  except  at  the 
extremities,  as  a. general  thing,  this  lake  has  no  filum  aquce ;  but 
is  an  expanse  of  still,  deep  water,  in  some  places  ten  or  fifteen 
miles  in  width.  It  is  perfectly  clear  to  my  mind  that  a  grant  of 
land,  bounded  by  this  lake,  does  not  extend  to  the  middle  of  it" 
'(  The  Champlain  and  St.  Lawrence  Railroad  Company  v.  Valen- 
titie,  19  Barh.  B.,  484,  489-491).  This  is  doubtless  the  correct 
■doctrine  in  respect  to  a  lake  of  the  size  of  the  Champlain,  even 
though  it  did  not  separate  one  State  from  another;  but  it  is  held 
that  the  rule  which  applies  to  those  lakes  and  streams  which  form 
the  natural  boundaries  between  one  country  and  another  is  the 
same,  and,  upon  this  principle,  it  has  been  held  that  the  common- 
law  rule,  as  applied  to  the  construction  of  descriptions  in  a  deed 


LANDS   ON  LAKES  AND   PONDS.  G7 

Dounding  the  premises  by  or  along  or  upon  a  river,  has  no  appli- 
cation to  lands  bounded  by  the  Niagara  river;  that  river  fuvniing 
a  natural  boundary  between  this  country  and  a  foreign  nation 
{Kingman  v.  Sjjarfow,  12  Barh.  B.,  201).  The  same  court  has 
held  that  the  rule  does  not  apply  to  the  beautiful  Cazenovia  lake*, 
which  is  an  inland  lake  five  miles  long,  three-quarters  of  a  mile 
broad,  with  no  current  and  no  means  of  outlet,  not  used  as  a  high- 
way for  man  or  goods,  and  too  small  to  be  of  practical  use  for 
navigation.  Stress,  however,  was  very  properly  put  upon  the  fiict 
that  the  State  took  no  notice  of  the  existence  of  the  lake  when 
the  patent  was  granted  for  the  land  adjoining  it.  In  the  patent, 
it  appeared  that  there  was  no  restriction  or  exception  of  the  lake, 
no  reference  to  it,  no  reservation  of  the  water  or  land  under  water; 
and  hence  the  court  held  that  the  lake  was  embraced  within  the 
boundaries  of  the  grant,  and  as  the  lake  is  too  small  to  be  of  any 
practical  use  in  navigation,  except  it  be  as  a  connecting  link  of 
some  internal  improvement,  the  general  rule  in  respect  to  the 
great  lakes  of  the  country  would  not  apply  to  it  {Ledyard  x.  Ten 
Eijck,  36  Barb.  E.,  102). 

The  Supreme  Court  of  Vermont  has  laid  down  the  same  doc- 
trine in  respect  to  lands  bounded  on  Lake  Champlain  as  that 
declared  by  the  Supreme  Court  of  New  York  in  the  19th  of  Bar- 
bour ;  that  is  to  say,  such  lands  extend  to  the  edge  of  the  water 
at  low-water  mark.  And  it  was  further  held  that  the  same  rule 
applies  to  creeks  which  empty  into  a  lake,  and  are  substantially 
arms  or  inlets  of  the  lake  ;  that  is  to  say,  so  far  as  the  waters  of 
such  creeks  ordinarily  maintain  the  same  level,  and  rise  and  fall 
with  the  waters  of  the  lake  {Fletcher  v.  Phelps,  28  Yt.  B.,  257). 

It  will  be  remembered  that  the  law  of  boundary  as  applied  to  the 
sea,  and  navigable  streams  below  tide-water,  is  that  high-water 
mark  is  the  boundary,  while  lands  bounded  upon  the  great  lakes 
of  our  country  extend  to  low-water  mark.  There  are  good  reasons 
for  the  difference  in  this  rule.  Lord  Hale,  in  speaking  of  the 
shores  of  the  sea,  says,  there  seems  to  be  three  sorts  of  shores, 
"  according  to  the  various  tides,  viz. :  the  high  spring-tides,  which 
are  fluxes  of  the  sea  at  those  tides  that  happen  at  the  ecpiinoctials  ;  " 
which  he  says  many  times  overflow  ancient  meadows  and  salt 
marshes,  and  ^  spring-tides,  which  happen  twice  a  month,  at  the 
full  and  change  of  the  moon  ;  and  the  ordinary  tides  which  happen 
between  the  full  and  the  chano;e  of  the  moon.     The  land  waslied 


(38  LAW  OF  BOUNDARIES. 

DY  the  first  two,  he  considers  as  belonging  to  the  subject ;  and  that 
waslied  by  the  hist  —  between  high  and  low-water  mark  —  the  shore 
crossed  by  the  ordinary  flux  of  the  sea,  as  belonging  to  the  king 
{Harg.  Tracts,  12,  13,  25,  26).     This  latter  margin  or  belt,  that 
is  between  ordinary  higli-water  and  low-water  mark,  is  what  Lord 
Hale  denominates  the  shore  of  the  sea.     But  none  of  the  lakes  of 
this   country  have  any  appreciable  tide.     Lake   Champlain,  and 
most  sin^iilar  bodies  of  fresh  water  in  the  country,  are  high  and 
full  in  the  spring,  when  replenished  by  rivers  and  melting  snows ; 
and,  as  the  season  advances,  become  low  by  the  evaporation  and 
efflux  of  their  waters.     The  annual  rise  and  fall  vary  in  the  differ- 
ent lakes,  in  some  lakes  ten  or  fifteen  feet,  and  in  others  not  so 
much,  and  the  diminution  is  sometimes  sudden  and   sometimes 
gradual.     In  eases  of  most  of  these  bodies  of  water,  a  great  deal 
of  land,  valuable  for  agricultural  purposes,  is  necessarily  overflowed 
in  the  spring,  which  of  course  can  be  of  no  use  to  the  public,  for 
the  purposes  of  navigation,  after  the  water  recedes.     The  land 
upon  the  shores  or  borders  of  those  lakes,  which  is  inundated  in 
the  spring,  unlike  that  which  is  diurnally  (or  semi-diurnally)  over- 
flowed by  the  tide,  gradually  becomes  dry  and  so  remains  for  the 
season.     Its  condition,  perhaps,  bears  some  resemblance   to   that 
which  Lord  Hale  says  is  overflowed   by  high  spring-tides,   and 
which  he  says  belongs,  in  England,  to  the  subject  and  not  to  the 
kino-.     Upon  this  reasoning,  the  court  arrived  to  the  conclusion  in 
the  case,  in  the  19th  Barbour,  that  the  proprietors  on  the  border  of 
Lake  Champlain  might  be  the  owners  to  low-water  mark,  unless 
otherwise  limited  by  the  terms  of  their  grants,  and  such  is  the 
rule  applied  to  all  of  the  great  lakes  of  the  country.     These  great 
navigable  bodies  of  fresh  water  are  properly  regarded  as  public 
property,  and  not  susceptible  of  private  property  more  than  the 
sea;  but  the  owner  of  land,  bounded  upon  these  lakes,  may  claim 
the  soil  down  to  low-water  mark,  as  has  been  before  shown  in  this 
chapter. 

In  speaking  of  lakes,  Yattel,  in  his  celebrated  treatise  upon  the 
Law  of  Xations,  observes :  "  If  some  of  the  lands  bordering  on 
the  lake  are  only  overflowed  at  high  water,  this  transient  accident 
cannot  produce  any  change  in  their  dependence.  The  reason  why 
the  soil  which  the  lake  invades  by  little  and  little  belongs  to  the 
owner  of  the  lake,  and  is  lost  to  its  former  proprietor,  is  because 
the  proprietor  has  no  other  marks  than  its  banks  to  ascertain  how 


LANDS   ON  LAKES  AND   PONDS.  CO 

far  his  possessions  extend.  If  the  water  advances  inwardly  he 
loses  ;  if  it  retires,  in  like  manner  he  gains ;  such  might  have  been 
the  intention  of  the  nations  who  have  respectively  appropriated 
to  themselves  the  lake  and  the  adjacent  lands ;  it  can  scarcely  be  sup- 
posed that  they  had  anotlier  intention.  But  a  territory  overflowed 
for  a  time  is  not  confounded  with  the  rest  of  the  lake  ;  it  can  still 
be  recognized  ;  and  otherwise  a  town  overflowed  b}^  a  lake  would 
become  subject  to  a  different  government  during  the  inundation, 
and  return  to  its  former  sovereign  as  soon  as  the  waters  were  dried 
np.  For  the  same  reasons,  if  tlie  waters  of  the  lake,  penetrating 
by  an  opening  into  the  neighboring  country,  there  form  a  bay,  or 
new  lake,  joined  to  the  iirst  by  a  canal,  this  new  body  of  water  and 
the  canal  belong  to  the  owner  of  the  country  in  which  they  are 
found,  for  the  boundaries  are  easily  ascertained  ;  and  we  are  not  to 
presume  an  intention  of  I'eliuquishing  ,so  considerable  a  tract  of 
land,  in  case  of  its  happening  to  be  invaded  by  the  waters  of  an 
adjoining  lake"  {VatteVs  Law  of  Nations,  B.  1,  ch.  22,  §  275). 
It  will  be  observed  that  the  learned  author  here  treats  the  question 
as  arising  between  two  States ;  it  is  to  be  decided  bj^  other  prin- 
ciples when  it  relates  to  proprietors  wdio  are  members  of  the  same 
State.  In  the  latter  case,  it  is  not  merely  the  bomids  of  the  soil, 
but  also  its  nature  and  use,  that  determine  the  possession  of  it ; 
and  according  to  the  same  high  authority,  an  individual  who 
possesses  a  field  on  the  borders  of  a  lake  cannot  enjoy  it  as  a  field 
where  it  is  overflowed.  A  person  who  has,  for  instance,  the  right 
of  Ashing  in  the  lake  may  exert  his  right  in  this  new  extent ;  if 
the  waters  retire,  the  field  is  restored  to  the  use  of  its  former  owner^ 
These  principles  clearly  establish  the  rule  that  the  land  of  an  indi- 
vidual, bounded  upon  a  lake  of  any  considerable  size,  is  the  owner 
of  the  soil  to  ordinary  low-water  mark.  It  should  be  added,  that 
if  a  lake  penetrates  by  an  opening  into  the  low  lands  in  its  neigh- 
borhood, and  there  forms  a  permanent  inundation,  this  new  lake 
belongs  to  the  public,  upon  the  principle  that  all  lakes  belong 
to  the  public,  and  the  proprietor  of  land  adjoining  the  same  would 
oidy  own  to  the  water's  edge  at  low-water  mark,  the  same  as  though 
the  lake  had  originally  occupied  the  whole  site  {VatteVs  Law  of 
Nations,  B.  1,  ch.  22,  §  275). 

This  is  the  doctrine,  in  respect  to  lakes,  which  is  recognized  in 
this  country,*;ind  in  most  other  continental  countries.  But  it 
Beems  that,  in  Scotland,  the  soil  of  public  navigable  lakes  does  not 


7Q  LAW  OF  BOUKDAEIES. 

belong  to  the  crown,  but  to  the  owners  of  the  adjoining  lands, 
subject  to  the  public  right  of  navigation  {BelVs  Principles  of  Law 
cf  Scotland,  §  651).  The  same  principles  which  would  govern  the 
subject  in  Scotland,  would  seem  also  to  be  applicable  to  navigable 
lakes  in  England.  There  does  not,  however,  appear  to  be  any 
verj  decided  authority  upon  the  point.  The  doctrine  was  inci- 
dentally adverte,d  to  in  a  late  case  before  the  English  Court  of 
Queen's  Bench,  indicating,  somewhat,  the  drift  of  opinion  upon 
the  subject,  although  it  was  unnecessary  to  the  decision  of  the  case 
{Marshall  v.  Ulleswater  Navigation  Company,  3 Best  i&  S.  /?.,  732). 
But,  as  has  been  before  remarked,  the  great  navigable  lakes  of  this 
country  are  regarded  as  much  public  property  as  the  sea,  and  the 
lands  under  them  are  placed  on  the  same  footing  with  lands  under 
the  waters  of  navigable  rivers,  and  they  require  a  specific  grant  to 
enable  the  riparian  proprietor  to  go  beyond  the  shore  at  low-water 
mark,  and  the  grant  of  th'e  bed  of  such  lakes  can  only  be  made  to 
the  owner  of  the  adjoining  land. 

The  rule  which  prevails  in  respect  to  land  bounded  upon  fresh- 
water lakes,  applies  also  to  the  land  of  a  private  individual 
bounded  upon  a  natural  pond ;  that  is,  the  grant,  prima  facie 
extends  only  to  the  water's  edge  or  low-water  mark  ;  although  it 
is  different  in  the  case  of  an  artificial  pond  created  by  expanding 
a  stream  by  means  of  a  dam.  In  such  case,  the  riparian  proprie- 
tor will  go  to  the  thread  of  the  stream  in  its  natural  state  {State  v. 
Gilmanton,  9  N.  H.  E.,  461 ;  West  Eoxhurij  v.  Stfjcldard,  7 
Allen's  B.,  167).  Upon  this  subject  the  late  Chief  Justice  Shaw, 
in  a  well-considered  case  in  the  Supreme  Judicial  Court  of  Massa- 
chusetts, observed  :  "  Now,  the  word  '  pond '  is  indefinite.  It 
may  mean  a  natural  pond,  or  an  artificial  pond  raised  for  mill 
purposes,  either  permanent  or  temporary,  and  in  both  cases  the 
limits  of  such  body  of  water  may  vary  at  different  times  and  sea- 
sons, by  use,  or  by  natural  causes  ;  and  where  the  one  or  the  other 
is  adopted  as  a  descriptive  limit  or  boundary,  a  difi'erent  rule  of 
construction  may  apply.  A  large  natural  pond  may  have  a  defi- 
nite low-water  line  ;  and  then  it  would  seem  to  be  the  most 
natural  construction,  and  one  which  w^ould  be  most  likely  to  carry 
into  effect  the  intent  of  the  parties,  to  hold  that  land  bounded 
upon  such  a  pond  would  extend  to  low-water  mark  ;  it  being  pre- 
sumed that  it  is  intended  to  give  to  the  grantee  the  benefit  of  the 
water,  whatever  it  may  be,  which  he  could   not  have  upon   any 


LANDS    ON  LAKES  AND   PONDS.  71 

3tlier  construction.     Where  an  artificial  pond  is  raised  by  a  dam, 
swelling  a  stream   over  its  banks,  it  wonld  be  natural  to  presume 
that  a  -rant  of  land  bounding  upon  such  a  pond  would  extend  to 
the  thread  of  the  stream  upon  which  it  is  raised,  unless  the   pond 
had  been  so  long  kept  up  as  to  become  permanent,  and  to  have 
acquired   another  well-defined  boundary.     But  it  .s  difticult    to 
npvdy  either  of  these  rules  to  the  present  case,  which  is  that  ol  a 
pond  originally  natural,  but  which  has  been  raised  more  or  less  by 
•u-tificiarnieans.     The  discovery  of  this  fact,  upon  applying  the 
deed  to  the  local  objects  embraced  within   its  descriptive  terms, 
discloses  a  latent  ambiguity.     According  to  a  well-established  rule 
of  evidence,  therefore,  it  is  competent  to  resort  to  parol  proof, 
showin-  all  the  circumstances  from  which  a  legal  inference  can  be 
drawn,"that  one  or  another  line  was  intended  by  the  ambiguous 
description  used  in  the  deed.     And  this  is,  in  truth,  what  bo  h 
parties  have  done  in  the  present  case  "  (  Waterma^i  v.  Johnson,  13 

^it  a^kte^cL  before  the  same  court,  Metcalf,  J.,  who  delivered 
the  opinion,  said  :  "  By  the  deed  under  which  the  plaintiff  claims 
title  to  the  locus  in  quo,  he  is  bounded  '  westerly  by  Phmney  s 
Hiill-pond,'  which,  according  to  the  agreed  facts,  is   sometimes  ■ 
called  by  that  name,  and  sometimes  by  the  name  of     Trout  brook, 
and   which  is   about  thirty    rods  long,  and   through  which  the 
thread  of  the  stream  has  always  been  apparent.     On  this  state  of 
facts,  the  court  are  of  opinion  that  the  western  boundary  of  the 
plaintiff's  land  is  the  center  or  thread  of  tlie  stream  as  it  unques- 
tionably would  have  been  if  the  deed  had  bounded  him  on  Trout 
brook  the  other  name  by  which  the  water  was  known  and  called 
(Phinney  v.  Watts,  9  Gray^s  R.,  269).     But  the  saine  court,  at  a 
still  later  date,  held,  in  emphatic  language,  that  the  boundary  on  a 
"pond  extends  only  to  low-water  mark  (TF..^  Ro.lury  v. 

Stoddard,  7  Allen's  R.,  167).  .        ,     ,.  ^„  ,    .,.  .i,.,.  „ 

The  Supreme  Court  of  Maine,  in  a  leading  case  he  d  that  a 
conveyance  of  land  bounded  on  a  fresh-water  pond,  which  had 
been  permanently  enlarged  by  means  of  a  dam  at  ^ts  mouth,  ..r- 
r'es  the  title  to  low-water  mark  of  the  pond  in  its  enlarged  state. 
Sip  ley,  C.  J.,  in  his  opinion,  said  :  "  The  use  of  the  waters  of  such 
pi  I;  all  se'asons  is  of  great  importance  to  the  ownei.  of  O^^^ 
adioininglfrnds.  When  the  water  is  low,  its  use  become  moiedesir 
abend  valuable.     Such  waters  are  most  valuable  to  the  owners  of 


72  LAW  OF  BOUNDARIES. 

land  adjoining  them,  for  which  tide-waters  cannot  be  used.  Unless 
rebutted  bj  some  proof,  the  presumption  is  that  it  was  the  inten- 
tion of  the  parties  to  a  conveyance  of  land,  bonnded  by  a  pond, 
that  the  land  should  be  bounded  upon  it  at  all  seasons  of  the  year, 
and  not  while  the  pond  I'emained  only  at  the  level  existing  at  the 
time  of  the  conveyance.  If  the  contrary  doctrine  were  adopted,  a 
person  who  received  a  conveyance  of  land  adjoining  on  a  pond, 
when  the  w^ater  was  quite  low,  might  convey  it  to  another  at  a 
more  elevated  and  yet  not  high  state  of  the  water  with  a  like 
boundary,  and  retain  a  small  strip  of  land  between  those  two 
water  lines;  and  there  might,  under  the  application  of  the  doc- 
trine, be  several  strips  of  land  thus  owned  by  different  persons, 
when  conveyances  were  made  at  several  diHerent  states  of  the 
water.  No  grantor  or  grantee  can  be  supposed  to  have  intended 
to  produce  such  results"  {Woody.  Kelley,  30  Maine  R.,  47). 
This  case  determines  that  land,  bounded  on  a  large  natural  pond, 
extends  to  low-water  mark,  aiid  that  the  same  rule  should  apply. 
when  the  land  is  bounded  upon  a  natural  pond,  after  it  has  been 
for  a  long  time  enlarged  by  artificial  means,  and  thereby  becomes 
permanently  fixed  in  its  enlarged  form ;  and  there  would  seem  to 
be  no  good  reason  why  there  should  be  any  difference  in  the  rule 
in  the  two  cases.  In  an  earlier  case  the  same  court  decided  that 
where  land  conveyed  is  bounded  in  the  conveyance  on  a  pond,  the 
grant  extends  only  to  the  margin  of  the  pond.  And  it  was  said 
that,  in  such  case,  the  margin  of  the  pond,  as  it  existed  at  the 
time  of  the  conveyance,  is  the  limit,  whether  the  pond  was  then 
in  its  natural  state,  or  raised  above  it  by  a  dam,  or  depressed 
below  it  by  the  deepening  of  its  outlet.  In  the  course  of  the 
opinion  the  court  remarked:  "The  proprietors  of  the  pond  and 
of  the  contiguous  land,  when  they  sold  to  the  pond,  must  have 
intended  to  reserve  that  as  a  reservoir  for  the  purpose  to  which  it 
had  been  appropriated  ;"  and,  again  :  "  Had  the  land  been  bounded 
by  a  river  or  stream,  or  upon  an  artificial  pond  created  by  expand- 
ing a  stream  by  means  of  a  dam,  the  riparian  pro]>rietor  would  go 
to  the  thread  of  the  stream "  (/.'/v^^/Zcy  v.  Rice,  13  Mai?ie  R., 
198). 

Sufficient  has  been  said  in  this  place,  perhaps,  to  show  the 
principles  upon  wdiich  the  boundary  of  lands  upon  fresh-water 
lakes  and  ponds  is  determined.  The  doctrine  will  be  further 
illustrated  when  the  construction  of  grants  of  land  adjoining  such 


PROPERTY  IN  ISLANDS.  73 

bodies  of  water  shall  be  considered,  wliicli  will  be  attended  to  in 
a  subsequent  chapter.  The  whole  subject,  of  course,  depends 
much  upon  the  size,  shape  and  depth  of  the  lake  or  pond,  and  the 
manner  in  which  it  is  formed.  In  the  State  of  Massachusetts 
great  ponds,  containing  more  than  ten  acres,  which  were  not, 
before  the  year  1647,  appropriated  to  private  persons,  were,  by 
the  colony  ordinance,  made  i)ublic,  to  lie  in  common  fur  public 
use.  This  ordinance  applied  to  all  those  ponds,  whether  at  that 
time  included  within  the  territory  granted  to  a  town  or  to  any 
body  of  proprietors  for  the  plantation  of  a  town,  or  not  then 
granted  by  the  government  of  the  colony,  if  they  had  not  then 
been  appropriated  to  particular  persons,  either  by  the  freemen  of 
the  town  or  by  the  general  court  {Vide  West  Eoxhury  v.  Stod- 
dard, 7  Allen's  B.,  158).  The  question,  therefore,  is  easily  deter- 
mined in  Massachusetts;  but  in  most  cases  the  matter  must  be 
decided  upon  established  principles  and  judicial  authority. 


CHAPTER  VI. 

THE     LAW   OF    BOUNDARY    IN    Rp:SPECT    TO     ISLANDS PRINCIPLES    ON 

WHICH    THE    OWNERSHIP    OF    NEWLY-FORMED    ISLANDS      IS     TO     BE 
DETERMINED. 

The  question  of  property  in  islands  must  be  settled  upon  prin- 
ciples discussed  in  preceding  chapters.  It  has  been  shown  that 
the  common  law  recognizes  an  important  distinction,  as  to  the  use 
of  waters  and  the  property  of  the  soil,  between  rivers  or  waters 
navigable,  and  tliose  which  are  not  navigable.  The  former  invari- 
ably and  exclusively  belong  to  the  public,  unless  acquired  from  it 
by  individuals  under  grant  or  prescription.  The  latter  are  held  to 
belong  to  those  whose  land  borders  on  the  waters ;  so  that  they 
liave  the  exclusive  right  of  fishing  in  front  of  their  own  land,  and 
have  a  property  in  the  bed  or  soil  of  the  river  under  the  water, 
subject,  however,  to  an  easement  or  right  of  passage  up  and  down 
the  stream  in  boats  or  other  craft  for  purposes  of  business,  con- 
venience or  pleasure.  This  is  called  in  the  civil  law  a  servitude, 
which  is  quite  consistent  with  the  right  of  property.  There 
appears,  Ig^vever,  to  be  an  important  difference  between  the 
common  and  the  civil  law,  in  regard  to  the  rights  of  the  ]>ublic 
10 


74  LAW   OF  BOUyDARIES. 

and  individuals,  upon  this  subject.  By  the  former,  the  right  of 
the  king  or  the  public  is  limited  to  those  places,  whether  bays, 
coves,  inlets,  arms  of  the  sea  or  rivers,  in  which  the  tide  ebbs  and 
flows,  this  being  the  common-law  definition  of  navigable  waters  ; 
whereas,  by  the  civil  law,  all  rivers  properly  so  called,  even  above 
tide-water,  provided  they  are  navigable  by  ships  or  boats,  or,  per- 
haps, any  other  floating  vehicle,  are  considered  as  public  property. 
The  doctrine  of  the  common  law,  in  this  respect,  is  recognized  to 
the  fullest  extent  in  some  of  the  American  States:  the  doctrine  of 
the  civil  law  in  others ;  and  in  still  others,  the  doctrine  of  the 
common  law  is  received,  restricted  and  modified,  so  as  to  meet  the 
exigencies  of  the  case.  Accoi-ding  to  the  rule,  everywhere  adopted 
in  this  country  and  in  England,  if  an  island  rises  in  the  sea,  it 
belongs  to  the  sovereign  or  the  public,  though  by  the  civil  law  it 
belongs  to  the  discoverer  or  first  occupant.  If  an  island  be  formed 
in  a  navigable  river,  the  same  rule  of  the  common  law  gives  it  to 
the  sovereign,  but  the  civil  law  to  the  owners  of  the  land  on  each 
side.  Should  the  island,  however,  arise  in  an  unnavigable  river, 
both  the  civil  and  the  common  law  agree  in  assigning  it  to  the 
adjoining  proprietors.  If  the  medium  filum  of  the  stream  bisects 
the  island  equally,  each  proprietor  will  take  an  equal  share  ;  but 
if  unequally,  then  the  larger  share  will  belong  to  him  to  whose 
land  it  is  nearest.  But  should  the  island  arise,  not  in  the  middle, 
but  entirely  on  one  side  of  the  stream,  then  the  whole  of  tlie 
island  will  belong  to  the  owner  of  the  land  on  that  side.  This  is 
the  general  rule  upon  the  subject,  and  it  is  usually  applied  by  all 
the  courts  of  this  country.  In  all  cases  where  the  title  to  the  soil 
under  the  water  is  in  the  public,  a  newly-formed  island  in  such 
body  of  water  belongs  to  the  public,  as  in  the  case  of  the  sea,  navi- 
gable rivers  and  the  large  fresh-water  lakes  of  this  country.  And 
in  all  cases,  where  the  soil  under  the  water  belongs  to  the  riparian 
proprietors  bordering  upon  the  water,  the  newly-formed  island  in 
such  body  of  water  will  belong  to  the  riparian  owner.  That  is  to 
say,  the  doctrine  which  governs  in  respect  to  the  soil  under  the 
water,  will  control  in  respect  to  the  island  formed  in  such  water. 
The  owner  of  the  soil  under  the  water,  by  the  general  laws  of  pro- 
perty, becomes  entitled  as  of  right  to  all  accessions. 

The  doctrine  of  the  courts  upon  the  subject  will  be  understood 
by  a  brief  reference  to  authorities.  A  leading  case  in  the  State 
of  Massachusetts  came  before  the  Supreme  Judicial  Court  of  the 


PROPERTY  IN  ISLAXDS.  tO 

State  in  1S26,  which  involved  the  right  to  an  island  in  the  Eiver 
Pawtueket.  This  case  recognizes  the  rule  of  the  common  law, 
that  the  property  in  the  soil  of  rivers  not  navigable,  subject  to 
public  easements,  belongs  to  those  whose  lands  border  upon  them  ; 
and  from  this  right  of  property  in  the  soil  in  the  bed  of  the  river 
the  court  deduce  the  right  of  property  in  an  island,  which  gradu- 
ally arises  above  the  surface  and  becomes  valuable  for  use  as  land. 
Assuming  the  thread  of  the  river  as  it  was  innnediately  before 
such  island  made  its  appearance,  this  rule  assigns  the  whole  island 
or  bare  ground  formed  in  the  bed  of  the  river,  if  it  be  wholly  on 
one  side  of  the  thread  of  the  river,  to  the  owner  on  that  side  ;  but 
if  it  be  so  situated  that  it  is  partly  on  one  side  and  partly  on  the 
other  of  the  thread  of  the  river,  it  shall  be  divided  by  such  line, 
and  held  in  severalty  by  the  adjacent  proprietors.  This  is  clearly 
the  doctrine  of  the  case,  and  it  was  held  that  the  dividing  line 
between  the  adjacent  proprietors  will-  run  in  the  same  numner  as 
if  there  were  no  island  in  the  river  {IngrahaTn  v.  Wilkinso7i,  4 
Pick,  i?.,  268).  The  doctrine  was  again  recognized  by  the  same 
court,  nine  years  afterward,  when  it  was  held  that  where  an  island 
is  so  formed  in  the  bed  of  a  river,  not  navigable,  as  to  divide  the 
channel  and  lie  partly  on  each  side  of  the  thread  of  the  river,  it 
will  be  divided  betw^een  the  riparian  proprietors  of  the  of)posite 
sides  of  the  river  according  to  the  original  thread  of  the  river. 
So  held  in  respect  to  an  island  formed  by  alluvial  deposits  in  the 
Deerfield  river  in  the  central  part  of  the  State,  and  a  tributary  of 
the  Connecticut  {The  Inhalntaiits  of  Deerfield  v.  Arms^  17  Pick. 
P.,  41).  And  the  doctrine  was  again  approved  by  the  same  court 
in  1852,  in  which  it  was  held  that  if  the  course  of  a  river  not 
navigable  changes,  and  cuts  off  a  point  of  land  on  one  side,  mak- 
ing an  island,  such  island  still  belongs  to  the  original  owner.  In 
such  case,  if  the  old  bed  of  the  river,  being  gradually  deserted  by 
the  current,  fills  up  and  new  land  is  formed,  such  newlj'-formed 
land  belongs  to  the  opposite  riparian  proprietors  respectively,  to 
the  thread  of  the  old  river.  And  if  new  land  be  formed  in  the 
river  above  said  island,  and  not  by  slow,  gradual  and  insensible 
accretion  to  it,  such  new  land  above  belongs  to  the  opposite  ripa- 
rian proprietors  to  the  filum  aqum  or  thread  of  the  river.  The 
thread  of  the  river  in  such  case  was  held  to  be  the  medium  line 
betweeij^he  shores  or  natural  water-lines  on  each  side  at  the  time 
the  new  land  was  formed,  without  regard  to  the  channel  or  deepest 


76  LAW   OF  BOUXD ABIES. 

part  of  the  stream.  The  land  in  controversy  was  newly-made 
land,  formed  in  what  was  formerly  the  bed  of  the  Connecticut 
river,  lying  between  the  towns  of  Hatfield  and  Hadley.  The  land 
had  been  graduallj^  formed  in  consequence  of  a  change  in  the  bed 
of  the  river.  On  the  east  side  of  the  river  was  a  tract  of  land 
known  as  the  school  meadow  land,  bounded  formerly  by  a  curved 
line  projecting  considerably  into  the  river.  As  long  ago  as  1805 
or  1806,  the  water  in  high  freshets  began  to  find  its  way  across 
the  school  meadow  land.  This  increased  from  year  to  year,  until 
the  current  was  formed  that  way  ;  and  in  1825,  a  great  portion,  if 
not  the  main  bodj'  of  the  stream  passed  that  way,  thus  making  a 
more  direct  line  across,  instead  of  following  the  former  bend  of 
the  river.  This  continued  to  increase  until  it  became  the  main 
channel  and  the  current  through  the  old  passage  ceased.  The  new 
channel,  thus  formed,  cut  off  and  insulated  the  most  projecting 
part  of  the  school  meadow  land  ;  the  part  thus  left  remained 
unchanged  in  position  and  became  an  island,  forming  the,  right 
bank  of  the  new  stream  as  far  as  it  extended.  The  question  was 
as  to  the  title  of  this  island  thns  newly  formed,  and  Shaw,  C.  J., 
who  delivered  the  opinion  of  the  court,  among  other  things,  said: 
"It  has  been  repeatedly  settled,  both  in  this  State  and  in  Connec- 
ticnt,  that  the  Connecticut  river,  though  valuable  for  the  purposes 
of  boating  and  rafting,  yet,  so  far  as  riparian  proprietorship  is 
concerned,  is  considered  a  river  not  navigable,  as  that  term  is  used 
in  the  common  law"  {Adams  v.  Pcese,  2  Conn.,  481  ;  Bardwell  v. 
Ames,  22  Pick.,  333). 

The  general  rule,  as  a  rule  of  the  common  law  of  England,  was 
long  since  laid  down  as  unquestionable  by  Lord  Holt,  who  says, 
in  the  case  of  Rex  v.  Wharton  {Holt,  499),  that  a  river,  of  com- 
mon right,  belongs  to  the  proprietors  of  the  land  between  which 
it  runs,  to  each  that  part  nearest  his  land.  *  *  *  And  the 
same  rule  has  been  repeatedly  declared  and  adjudged  in  this  com- 
momwealth.  It  is  derived  mainly  from  the  rule,  that  the  riparian 
proprietor  is  owner  of  the  soil  under  the  water,  and  by  the  general 
law  of  property  becomes  entitled  as  of  right  to  all  accessions. 
*  *  *  It  may  be  added  here,  on  the  authority  of  Lord  Hak3 
that  he  derives  the  title  to  islands,  in  creeks  or  havens  or  arms  of 
the  sea,  froni  the  right  of  property  in  the  soil  under  the  water, 
stating  that  this  \s>  prima  facie  and  of  common  right  in  the  king; 
yet   if,  in   point  of  propriety,  it   doth   belong  to   a  subject,  will 


PROPERTY  IN  ISLANDS.  77 

belong  to  the  subject.  This  is  applicable,  by  strict  analogy,  to  the 
case  of  a  river  not  navigable,  where  the  right  of  property  is 
admitted  to  be  in  the  riparian  proprietor  ad  filum  aqum.  *  *  * 
Now,  as  to  this  island,  it  is  not  newly  made,  but  a  portion  of  the 
old  school  meadow  land,  and  is,  as  it  was  before,  the  property  of 
the  demandants."  In  the  final  disposition  of  the  case,  the  court 
hiid  down  the  rules  first  stated,  with  the  express  approval  of  the 
other  Massachusetts  cases  referred  to  {Trustees  of  Ilopkms 
Academij  v.  Dick'mson,  9  Gush.  B.,  5U,  547,  550,  551). 

This  is  also  the  doctrine  as  laid  down  by  the  courts  of  South 
Carolina.     In  a  recent  well-considered  case  in  that  State  it  was 
held  that  islands  in  rivers  fall  under  the  same  rule,  as  to  owner- 
ship of  the  soil  and  its  incidents,  as  the  soil  under  water  does  ;^  if 
not  otherwise  lawfully  appropriated,  they  belong  to  the  riparian 
proprietor  on  one  side,  or  are  divided  in  severalty  between  the 
proprietors  on  both  sides,  according  to  the  original  dividing  line, 
ovjili/jn  aquce,  as  it  would  run  if  the  islands  were  under  water. 
Thejilum  aqucB  is  ascertained  by  measurement  across  from  ordi- 
nary low-water  mark  on  one  side  to  the  same  on  the  other  side, 
without  regard  to   the  channel  or  depth  of  water.     When    the 
island  is  appropriated,  the  boundary  is  then  midway  between  that 
and  the  main  land.     And  it  w.vi  held,  in  the  same  case,  that  a 
grant  or  conveyance  of  land,  bounded  by  a  river  not  technically 
navigable,  extends  to  the  medium /Zww  aqum,  unless  the  terms 
used  in  the  writing  clearly  denote  the  intention  to  stop  short  of 
that  line   {McCullough  v.  Wall,  4  Rich.  R.,  68).     And  Chief 
Justice  Shaw  remarked,  in  the  case  in  the  9th  of  Gushing,  that, 
"  in  ascertaining  the  thread  of  the  river,  it  will  be  proper  to  take 
the  middle  line  between  the  shores  upon  each  side,  without  regard 
to  the  channel  or  lowest  and  deepest  part  of  the  stream.     And  in 
ascertaining  the  shores,  or  water  lines  on  each  side,  to  measure,  it 
will  be  proper  to  find  what  those  lines  are  when  the  water  is  in 
its  natural  and  ordinary  stage,  at  a  medium  height,  neither  swol- 
len by  freshets  or  shrunk  by  drought." 

The  old  Supreme  Court  of  the  State  of  New  York  decided  that, 
when  the  water  of  a  river  is  divided  by  an  island,  so  that  only 
one-fourth  of  the  stream  descends  on  one  side  of  the  island,  and 
the  residue  on  the  other,  the  owner  of  the  shore  where  the  largest 
quantil^  of  water  flows  is  entitled  to  the  use  of  the  whole  water 
flowino;'' there:  and  the  owner  of  the  other  shore  has  no  right  to 


78  LAW  OF  BOUNDARIES. 

place  obstructions  at  the  head  of  the  island  to  cause  one-half  of  the 
stream  to  descend  on  liis  side  of  the  river.  This  is  an  interestins: 
case,  but  it  does  not  directly  involve  the  title  to  the  island;  or, 
there  is  no  reference  to  that  in  the  decision  of  the  court  [Crocker 
V.  Bragg,  10  Wend.  E.,  260). 

The  Supreme  Court  of  the  United  States  decided,  at  an  early 
day,  that  the  boundary  of  the  State  of  Kentucky  extends  only  to 
low-water  mark  on  the  western  or  north-western  side  of  tlie  Rivei 
Ohio,  and  does  not  include  a  peninsula,  or  island,  on  the  western 
or  north-western  bank,  separated  from  the  main-land  by  a  channel 
or  bayou,  which  is  filled  with  water  only  when  the  river  rises 
above  its  banks,  and  is  at  otlier  times  dry ;  and  tlie  rule  was 
declared  that,  where  a  river  is  the  boundary  between  two  nations 
or  States,  if  the  original  property  is  in  neither,  and  there  be  no 
convention  respecting  it,  each  holds  to  the  middle  of  the  stream. 
But  when,  as  in  the  case  before  the  court,  one  State  (Yirginia)  is 
the  origiiuil  proprietor,  and  grants  the  territory  on  one  side  only, 
it  retains  the  river  within  its  own  domain,  and  the  newly-erected 
State  extends  to  the  river  only,  and  the  low-water  mark  is  its 
boundary,  Mr.  Chief  Justice  Marshall  delivered  the  opinion  of 
the  court,  and  said  :  "  If  a  river,  subject  to  tides,  constituted  the 
boundary  of  a  State,  and  at  flood  the  waters  of  the  river  flowed 
through  a  narrow  channel,  round  an  extensive  body  of  land,  but 
receded  from  the  channel  at  ebb,  so  as  to  leave  the  land  it  sur- 
rounded at  high  water  connected  with  the  main  body  of  the  coun- 
try, this  portion  of  territory  would  scarcely  be  considered  as 
belonging  to  the  State  on  the  opposite  side  of  the  river,  although 
that  State  should  have  the  property  of  the  river.-  The  principle 
that  a  country  bounded  by  a  river  extends  to  low-water  mark  —  a 
principle  so  natural  and  of  such  obvious  convenience  as  to  have 
been  generally  adopted  —  would,  we  think,  apply  to  that  case. 
"We  perceive  no  sufflcient  reason  why  it  should  not  apply  to  this" 
{Ilandifs  Lessee  v.  Anthony,  5  WheatoubS  R.,  374).  And  the 
same  high  court  held,  in  a  much  later  case,  in  which  it  appeared 
that,  at  the  cession  from  Georgia  to  the  United  States,  in  1802,  of 
all  the  land  "  west  of  a  line  beginning  on  tlie  western  bank  of  the 
Chattahoochee  river,"  and  running  thence  up  the  said  River  Chat- 
tahoochee and  along  the  western  bank  thereof,  that  Georgia 
retained  the  bed  of  tlie  river  as  far  as  the  natural  line,  marked  by 
the  action  of  the  running  water,  dividing  the  bed  of  the  river 


PROPERTY  IN  ISLANDS.  '9 

from  the  western  bank,  and  that  Georgia  retained  the  hand  west 
of  this  line  as  far  as  the  top  of  the  bluff  on  the  western  bank ; 
thereby  declaring  the  doctrine  that  where  a  power  is  possessed  ot 
a  territory  embracing  a  river,  and  grants  all  of  the  same  lying  on 
one  side   of  the  river  to  another  power,   making    the  river  the 
boundarv,  the  first  power  retains  the  entire  river,  unless  the  same 
is  expressly   relinquished  {Iloioard  v.  Ingersoll,  13    How.  U.6. 
R    38 1)      These  principles,  of  course,  would  determine  the  rights 
to  an  island  for.ned  in  the  midst  of  a  river  constituting  the  bound- 
ary between  two  States,  because  it  is  well  settled  that  the  tit  e  to 
the  island  must  depend  upon  the  question  of  the  ownership  ot  the 
soil  in  the  bed  of  the  river  at  the  time  the  island  was  torined 

The  old  Supreme  Court  of  the  State  of  New  lork  held  that  a 
crant  of  a  river,  eo  nomine,  will  not  pass  the  soil  of  the  river,  or 
an  island  within  it.     Woodworth,  J.,  delivered  the  opinion  of  the 
court,  and  said:  "AVith  respect  to  tlie  island,  the  plamtifE  s  righ 
depends  on  the  expression  of  the  original  lease.     The  tarm  demised 
lies  on  the  south  side  of,  and  adjoining  the  river.     The  last  course 
but  one  extends  to  the  river;  thence  up  the  said  river  as  it  winds 
and  turns  (including  the  same)  to  the  place  of  beginning.  _    The 
question  is,  what  do  these  words  grant?     It  is  laid  down  in  Co 
Lit.  4,  b,  that  'if  a  man  grant  aquain  suam,  the  soil  shall  not 
pass;  but  the  piscary  within  the  water  passeth  tl.ei-ewitli.      The 
Tame  rule  is  recognized  in  Com.  Dig.,  Grant  {E.  5).     No  rigl  t, 
then    to  the  island  was  acquired  ;  and  all   testimony,  as  to  the 
defendant's  possession  of  that  part  of  the  premises  i"  ^^^estion,  w.^8 
properly  excluded"  {Jaohson  v.  Ilalstead,  5  Cow.  Ji.,  216,  2U  . 
If  the  island  was  fairly  embraced  within  the  limits  of  the  grant, 
of  course  the  title  to  it  would  be  in  the  grantee,  the   s.^ne  as 
though  it  consisted  of  the  original  bed  of  the  river  (  nde  Church 
y.  Holland,  U  Mass.  B.,  149  ;  Johns  v.  I)avidson,  15  /  enn.  It., 

^^The  Supreme  Court  of  Pennsylvania  has  held  that  title  to  islands 
lyinc  within  the  Kiver  Susquehanna,  or  its  branches,  cannot  be 
acqirired  by  actual  settlement  and  improvement ;  but  by  the  Penn- 
sylvania act  of  March  6tli,  1793,  directing  the  sale  ot  certain 
islands  in  the  Susquehanna,  or  its  branches,  an  improver  had  two 
years  to  obtain  a  warrant  and  have  a  survey  made,  and  in  case  of 
hisj.ec.lect  for  that  time  the  island  was  subject  to  application  by 
anf  otlier  person  ;  and  though  it  was  incumbent  on  the  improver 


80  .  L^^"  OF  BOUNDARIES. 

to  state  the  nature  of  bis  improvement,  and  wlien  and  by  whom 
it  was  made,  tbis  was  not  necessary  in  the  application  of  anotber 
wbo  applied  for  tbe  island  more  tban  two  years  after  the  improver 
had  neglected  to  make  application  for  it.  Wliere  the  Mifflin  and 
Huntingdon  join  at  tbe  Juniata  river,  at  their  southern  points  of 
junction,  tbe  courts  hold  that  their  respective  boundaries  do  not 
extend  usgue  ad  jilum,  aqucB ;  but  tbe  whole  bed  of  the  Juniata 
river  from  tliat  point  up  to  Jack's  Narrows  is  in  Mifflin  county, 
and  tbe  islands  in  the  river  belong  to  the  latter  county  [Johns  v. 
J)avidso7i,  16  Penn.  R.,  512). 

It  will  be  borne  in  mind  that  the  doctrine  in  Pennsylvania,  in 
respect  to  the  title  in  the  beds  of  tbe  rivers  of  that  State,  is  some- 
what different  from  the  rule  at  coinraon  law,  or  of  that  which  is 
recognized  in  most  of  the  other  States.  But  the  ownership  of  newly- 
formed  islands  in  the  rivers  of  that  State  is  determined  by  the 
same  principles  as  are  held  to  govern  in  other  States ;  that  is,  the 
title  to  tbe  island  will  be  in  the  owner  of  tbe  soil  under  the  river 
where  tbe  island  may  be  formed.  At  no  time  in  the  history 
of  Pennsylvania,  either  before  October  13,  1760,  or  since,  have 
islands  in  her  large  rivers  been  open  to  settlement  on  tbe 
same  terms  with  fast  land  generally.  They  could  only  be  settled 
on  agreed  terms  with  tbe  proprietors  {Fisher  v.  Carter,  Wallace, 
Jr.  i?.,  69).  But  this  doctrine  has  no  necessary  bearing  upon  tbe 
question  of  boundary  as  affected  by  newly-formed  islands  in  tbe 
rivers  of  tbe  State.  When  islands  de  novo  arise,  it  is  either  by 
the  recess  or  sinking  of  the  water,  or  else  by  the  exaggeration  of 
sand  and  rubbish,  which,  in  process  of  time,  grow  firm  land  envi- 
roned with  water,  and  frhna  facie  and  of  common  right  they 
belong  to  the  proprietor  of  tbe  bed  on  which  they  are  formed. 


RULES  IN  RESPECT  TO  ALLUVION.  81 


CHAPTER  VI r. 

THE  LAW  OF  BOUNDARY    AS    AFFECTED  BY   MARITIMA  INCREMENTA,    OR 
INCREASE    OF    LAND    BY    THE    SEA,  AND    THE    RULE    IN    RESPECT    TO 

ALLUVION  AND  RELICTION HOW  ALLUVION  AND  RELICTION  ARE  TO 

BE  DIVIDED  AMONG  THE  PARTIES  ENTITLED  TO  THEM  —  THE  RULE  IN 
RESPECT  TO  AVULSION. 

The  rule  in  respect  to  the  title  to  maratlma  incremental  or 
increase  of  land  by  the  sea,  has  been  much  discussed  by  elemen- 
tary writers,  and  is  well  settled  by  the  courts.  This  increase  is  of 
three  kinds,  one  of  which,  tliat  lyer  insuloB  productionem,  or 
islands,  was  considered  in  the  last  preceding  chapter.  Two  other 
species,  strictly  embraced  in  this  branch,  remain  to  be  considered ; 
that  is,  increase  jjer 2?rojectione?7i  vel  alluvlonem,  or  alluvion,  and 
increase  per  relictionem  vel  desertioiievi.^  or  reliction.  These 
belong  to  the  sovereign  oj-  the  owner  of  the  land  adjacent,  accord- 
ing to  circumstances,  which  must  be  noticed.  The  increase  j^er- 
alluvionem,  according  to  Sir  Matthew  Hale,  is,  where  the  sea,  by 
casting  up  sand  and  earth,  by  degrees  increases  the  land,  and: 
shuts  itself  out  further  than  the  ancient  bounds  went,  which  is 
very  usual.  This  he  says  belongs  to  the  crown,  and  the  reason  he 
gives  for  the  rule  is,  "  because  in  truth  the  soil,  where  there  is 
now  dry  land,  was  formerly  part  of  the  very  fimdis  viaris  ;  and 
consequently  belonged  to  the  king."  "  But  indeed,"  he  adds,  "  if 
such  alluvion  be  so  insensible  that  it  cannot  be  by  any  means 
found  that  the  sea  was  there,  idem  est  nan  esse  et  non  apparere ; 
the  land  thus  increased  belongs,  as  a  perquisite,  to  the  owner  of 
the  land  adjacent"  {Hale  de  Jure  Ifaris,  i^art  1,  ch.  4,  §  2).  This 
is  undoubtedly  a  correct  view  of  the  case.  Where  the  increase 
arises  from  the  sudden  recession  of  the  water,  the  ground,  which, 
is  termed  derelict  land,  will  go  to  the  crown  or  to  the  public,  and; 
not  to  the  adjoining  owner.  But  where  the  accretion  is  made 
so  gradually  and  imperceptibly  that  no  one  can  perceive  how  much, 
is  added  in  any  one  moment  of  time,  then  the  increase  goes  to  the 
owner  of  the  adjoining  land  though  the  right  to  the  shore  may 
remain  in  the  sov^ereign  (  Vide  Rex  v.  Yarhoroxbgh.,  3  Barn,  di  • 
Ores.  7?.,  91;  S.  6%  5  Bing.  7?.,  163;  S.  C,  10  Eng.  C.  L.  R.,. 
19).  ji^he  case  of  Rex,  v.  Yarhorcnigh  was  taken  to  the  House  of  i 
LorcRand  was  there  affirmed  (2  BligK's  R.,  N'.  S.,  147 ;  S.  C,  J.> 
11 


32  L^W  OF  BOUNDARIES. 

Bow's  R.,  N.  S.,  176).     It  involved  the  right  of  soil  connected 
with  tide-water,  but  the  discussion  was  of  much  interest  upon  the 
general   subject   of  the   right   of  accretions  connected  with  fresh 
water  lakes  and  rivers,  as  well.     The  counsel  for  the  crown  quoted 
the  passage  from  Lord  Hale's  De  Jure  Maris,  hereinbefore  given, 
and  Abbott,  C.  J.,  who  delivered   the  opinion  of  the  Court  of 
King's  Bench,   said:  "In  these  passages.    Sir  Matthew  Hale  is 
speaking  of  the  legal  consequence  of  such  an  accretion,  and  does 
not  explain  what  ought  to  be  considered  as  accretion  insensible  or 
imperceptible  in  itself,  but  considers  that  as  being  insensible,  of 
which   it   cannot  be  said,  with   certainty,  that   the   sea   ever  was 
there.     An  accretion  extremely  minute,  so  minute  as  to  be  imper- 
ceptible even  by  known  antecedent  marks  or  limits  at  the  end  of 
four  or  five  years,  may  become,  by  gradual  increase,  perceptible 
iby  such  marks  or  limits  at  the  end  of  a  century,  or  even  of  forty 
or  fifty  years.     For  it  is  to  be  remembered,  that  if  the  limit  on 
one  side  be  land,  or  something  growing  or  placed  thereon,  as  a 
tree,  a  house  or  a  bank,  the  limit  on  the  other  side  will  be  the 
sea,  which  rises  to  a  height  varying  almost  at  every  tide,  and  of 
which  the  variations  do  not  depend  merely  upon  the   ordinary 
course  of  nature  at  fixed  and  ascertained  periods,  but  in  part  also 
upon  the  strength  and  direction   of  the  wind,  which  are  different 
almost  from  day  to  day.     And,  therefore,  these  passages  from  tlie 
-work  of  Sir  Matthew  Hale  are  not  properly  applicable  to  this 
question.      And,    considering    the   word  'imperceptible,'  in  this 
issue,  as  connected  with  the  words  '  slow  and  gradual,'  we  think  it 
must  be  understood  as  expressive  only  of  the  manner  of  the  accre- 
tion, as  the  other  words  undoubtedly  are,  and  as  remaining  imper- 
ceptible in  its  progress,  not  imperceptible  after  a  long  lapse  of 
time.     And  taking  this  to  be  the  meaning  of  the  word  '  imper- 
ceptible,' the  only  remaining  point  is,  whether  the  accretion  of 
this  land  might  properly,  upon  evidence,  be  considered  by  the 
jury  as  imperceptible.     No  one  witness  has  said  that  it  could  be 
perceived,  either  in  its  progress,  or  at  the  end  of  a  week   or  a 
month.     One  witness,  who  appears  twice  to  have  measured  the 
land,  says  'that,  within  the  last  four  years,  he  could  see  that  the 
sea  had  receded,'  but  he  did  not  say  how  much ;  the  same  witness 
said,  '  that  it  certainly  had  receded  since  he  measured  it  last  year,' 
but  he  did  not  say  how  much  ;  and,  according  to  his  evidence,  the 
gain  in  a  period  of  twenty-six  or  twenty-seven  years  was,  on  the 


RULES  ly  RESPECT  TO   ALLUVIOX.  83 

average,  about  five  yards  and  a  half  in  a  year.  Another  witness 
speaks  of  a  gain  of  100  to  150  yards  in  fifteen  years ;  a  much 
greater  increase  than  that  mentioned  by  the  first  witness ;  and 
this  second  witness  adds,  that  during  the  hist  five  years  there  had 
been  a  visible  increase  in  some  parts  of  from  thirty  to  fifty  yards. 
Upon  the  evidence  of  this  witness,  it  is  to  be  observed,  that  he 
speaks  very  loosely,  the  difterence  between  100  and  150  in  fifteen 
years,  and  between  thirty  and  fifty  in  five  years,  being  very  great. 
The  third  witness  said  there  had  been  some  small  increase  in 
every  year.  The  fourth  witness  said,  '  the  swarth  increases  every 
year  gradually,  ?ix\^  perhaps  it  had  gathered  a  quarter  of  a  mile 
in  breadth  in  some  places  within  his  recollection,  or  during  the 
last  fifty-four  or  fifty-five  years,  and  in  some  places  it  had  gathered 
nothing.'  And  this  was  the  whole  evidence  on  the  subject.  We 
think  the  jury  might,  from  this  evidence,  very  reasonably  find  that 
the  increase  had  not  only  been  slow  and  gradual,  but  also  '  imper- 
ceptible,' according  to  the  sense  in  which,  as  I  have  before  said, 
we  think  that  word  ought  to  be  understood."  In  connection  with 
the  question  of  alluvion,  it  is  important  to  understand  the  mean- 
ing of  this  word  "  imperceptible,"  and  these  observations  of  Chiet 
Justice  Abbott  are  therefore  quite  pertinent,  as  giving  the  legal 
interpretation  of  the  word.  Alluvion  is  defined  by  the  French 
law  to  be  an  "increase  of  land,  which  is  made  by  degrees  {i^eu  a 
pen)  on  the  shores  of  the  sea,  of  navigable  and  other  rivers,  by 
the  earth  which  the  w^ater  brings  there "  {Guy of  s  Repertcdre 
Universelle,  113);  and  this  is  substantially  the  same  as  the  word 
is  defined  by  the  Koman  and  Spanish  laws,  and  perhaps  it  may 
be  regarded  as  a  very  fair  interpretation  of  the  term. 

According  to  the  definition  which  has  been  given  of  alluvion, 
an  imperceptible  accretion  means  one  which  is  imperceptible  in 
its  progress,  and  not  one  which  is  imperceptible  after  a  lapse  of 
time ;  and,  therefore,  although  the  quantity  of  land  gained  from 
the  sea  may  eventually  be  very  great,  the  sovereign  or  the  public 
will  not  be  entitled  to  it  if  it  was  added  insensibly  and  by  slow 
degrees.  By  alluvion,  as  used  in  law,  is  meant  such  slow,  gradual 
and  insensible  accretion  that  it  cannot  be  shown  at  what  time  it 
occurred  {Trustees  of  Hopkins  Academy  v.  Dickinson,  9  Gush. 
B.,  551).  This  is  the  rule  of  the  common  law  upon  the  subject ; 
an^hat  of  the  civil  law  is  the  same.  The  latter  gives  it  as  fol- 
lows :  "  That  ground  which  a  river  has  added  to  your  estate  by 


84  LAW  OF  BOUNDARIES. 

alliivion  becomes  your  own  by  the  law  of  nations ;  and  that  is 
said  to  be  alluvion  whicli  is  added  so  gradually  that  no  one  can 
judge  how  much  is  added  in  each  moment  of  time"  {Coop.  Inst.y 
tit.  2,  §  1  ;  Angell  on  Watercourses,  §  53).  Says  Mr.  Phear,  an 
English  elementary  writer  :  "  Where  a  stream  changes  its  course 
by  slow  and  imperceptible  steps  the  riparian  proprietors  are 
obliged  to  accept  the  consequent  alteration  in  their  boundaries ; 
but  where  the  sliifting  is  sudden  and  well  marked  the  original 
'/nedluvi  filum  continues  to  be  the  border  line,  and  the  stream,  so 
far,  passes  entirely  within  the  land  of  the  one  proprietor  {Harg. 
Tracts,  Be  Jure  Maris,  cap.  1 ;  2  Bla.  Com.,  262).  If  an  island 
is  formed  by  natural  causes  the  property  in  it  remains  apportioned 
in  the  same  manner  as  was,  before  its  appearance,  the  property  in 
the  soil  on  which  it  stands  (2  Bract.,  lib.  2,  cap.  2,  *Y  2 ;  2  Bla. 
Com.,  2Q1;  Sch^dtes,  US).  *  *  *  The  large  size  of  the  rivers 
in  America,  and  their  enormous  power  of  denudation  and  deposi- 
tion, have  given  this  point  a  pre-eminence  in  that  country  which 
it  does  not  possess  here ;  and,  accordingly,  it  will  be  foimd  to 
have  received  in  the  American  text-books  much  more  elabo- 
rate treatment  than  it  requires  in  England"  {Phear  Bights  of 
Water,  12). 

AVhat,  then,  is  usually  understood  by  the  word  alluvion  is  the 
gradual  accumulation  of  alluvial  deposit  upon  the  banks  of  a 
river  or  the  sea ;  and  a  man's  land  is  said  to  be  added  to  by  allu- 
vion where  the  accretion  is  made  so  gradually  and  imperceptibly 
that  no  one  can  perceive  the  moment  when  the  addition  %vas 
made.  That  is  to  say,  in  order  to  acquire  title  to  land  as  alluvion 
it  is  necessary  that  its  increase  should  be  imperceptible;  that  the 
amount  added  in  each  moment  of  time  should  not  be  perceived. 
"Where  the  change  is  so  gradual  as  not  to  be  perceived  in  any  one 
moment  of  time,  the  proprietor,  whose  land  on  the  bank  of  a  river 
or  the  sea  is  thus  increased,  is  entitled  to  the  addition  ( Vide 
Halsey  v.  McCormick,  \S  N.  Y.  B.,  147).  The  authorities  upon 
the  subject  are  numerous  and  decisive. 

The  courts  of  Maryland  have  held  that  lands  formed  by  accre- 
tion lielong  to  the  riparian  proprietor,  and  cannot  be  granted  by 
the  State  as  vacancy  {Patterson  v.  Gelston,  23  Md.  B.,  432).  To 
the  same  effect  is  a  decision  by  the  Supreme  Court  of  Pennsyl 
vania,  by  which  it  was  held  that  the  accretions  to  land  from  a 
river  belong  to  tlie  riparian  owner,  and  that  such  accretions  are 


RULES  IN  RESPECT  TO   ALLUVIOX.  85 

justl}'  included  in  describing  the  quantity  of  tlie  land  {Morgan  v. 
Scott,  26  Penn.  R.,  51).  And  the  Supreme  Court  of  Iowa  has 
recently  affirmed  the  same  doctrine,  holding  tliat  land  formed  by 
alluvion  on  a  navigable  river  between  the  meander  line  and  the 
water's  edge  belongs  to  the  owner  of  the  adjoining  land  {Krant  v. 
Crawford,  18  Iowa  R.,  549).  These  were  cases  of  alluvion  in 
the  true  sense  in  which  the  word  is  used.  And  the  Supreme 
Court  of  New  Hampshire  has  recently  made  a  decision,  holding 
that,  where  the  channel  of  a  river  has  been  gradually  changing 
for  years  by  wearing  away  the  bank  on  the  defendant's  side,  and 
by  adding  and  forming  accretions  upon  the  opposite  shore,  owned 
by  the  plaintiff,  by  slow  and  imperceptible  degrees,  the  channel, 
as  so  changed,  must  be  regarded  as  the  rightful  and  accustomed 
channel,  for  the  time  being,  as  between  the  different  parties ;  and 
that  such  accretions  become  the  property  of  the  land-owner  upon 
that  side  of  the  river,  and  are  as  much  entitled  to  protection  as 
his  original  inclosure  {Gerrish  v.  Clough,  48  N.  H.  i?.,  9).  So, 
also,  the  Supreme  Court  of  Missouri  has  very  recently  decided 
tliat  a  riparian  proprietor  of  land  in  St.  Louis,  whose  lot  is  bounded 
on  one  side  by  the  Mississippi  river,  is  entitled  to  alluvial  accre- 
tions formed  upon  the  sliore  as  far  as  the  middle  thread  of  the 
river  {St.  Louis  Public  Schools  v.  Plsley,  40  Mo.  P.,  356).  There 
is  no  question  as  to  the  doctrine,  where  the  accretions  are  formed 
by  slow  and  imperceptible  degrees,  so  as  to  answer  to  the  legal 
definition  of  alluvion. 

Whether  there  is  any  distinction  between  the  case  of  alluvion 
formed  by  natural  or  artiUcial  means,  the  decisions  are  not  entirely 
decided.  But  the  better  opinion  is  that  if,  by  some  artificial 
structure  or  impediment  in  the  stream,  the  current  should  be 
made  to  impinge  more  strongly  against  one  bank,  causing  it 
imperceptibly  to  wear  away,  and  causing  a  corresponding  accretion 
on  the  opposite  bank,  the  riparian  owner  would  be  entitled  to  the 
alluvion  thus  formed,  especially  as  against  the  party  M'ho  caused 
it;  as  was  well  suggested  by  Pratt,  J.,  in  giving  the  opinion  of 
the  court  in  a  case  decided  by  the  New  York  Court  of  Appeals, 
if  the  accretion  was  formed  under  all  the  circumstances  necessary 
to  constitute  it  alluvion,  it  can  hardly  be  supposed  that  n  person 
could  successfully  resist  the  otherwise  valid  claim  of  the  riparian 
o\yj»r,  by  alleging  his  own  wrong,  by  showing  that  the  accretion 
would  not  have  thus  formed  if  he  had  not  himself  wrongfully 


8(3  LAW  OF  BOUNDARIES. 

placed  impediments  in  the  stream  {Ealsey  v.  McCormicJc,  18  iT. 
Y.  E.,  147,  150).  And  the  present  Supreme  Court  of  the  State 
of  Xew  York  has  held  that,  where  artificial  accretions  are  made 
to  the  bank  of  a  public  highway,  extending  to  a  river,  they 
become  part  of  such  highway  ;  but  when  added  to  a  portion  of  the 
bank,  over  which  no  such  right  of  passage  existed,  they  are  a 
gain  to  the  adjoining  proprietor,  and  not  subject  to  a  right  of  use 
or  passage  in  consequence  of  the  right  of  navigation  which  previ- 
ously existed  through  displaced  waters  ( Wettnore  v.  The  Atlantic 
White  Lead  Co.,  37  Barh.  E.,  70). 

The  Supreme  Court  of  the  United  States  have  lately  held  that 
alluvion  attaches  only  to  the  land  bordering  on  the  streams  from 
which  the  alluvial  soil  is  derived  ;  and  where  such  land  has  been 
sold,  the  original  estate  of  which  it  formed  a  part  has  no  right  of 
alluvion  {Sauset  v.  Shepherd,  4  Wallace's  E.,  502).  And  the 
Supreme  Court  of  Mississippi  has  also  lately  decided  that  the 
principle  by  which  the  right  to  alluvion  is  determined  is  that  the 
riparian  proprietor,  who  is  liable  to  loss  by  floods,  is  entitled  to 
the  increase  which  may  result  from  the  like  cause.  And  it  was 
held  that,  where  a  lot  was  originally  granted,  bounding  on  a 
street,  although  the  grant  describe  this  front  as  facing  on  the 
river,  tlie  grantee  is  not  a  riparian  proprietor,  and,  as  such,  enti- 
tk'd  to  alluvion  formed  on  the  opposite  side  of  the  street  {Smith 
V.  St.  Louis,  30  21o.  E.,  290). 

It  has  been  recently  decided  by  the  Supreme  Court  of  Louisi- 
ana that  the  alluvion  belongs  to  the  owner  of  the  soil  situated  on 
the  edge  of  the  water,  whether  it  be  a  river  or  a  creek,  and 
whether  the  same  be  navigable  or  not ;  but  he  is  bound  to  leave 
public  that  portion  of  the  bank  which  is  required  by  law  for  the 
public  Tise  {Barrett  v.  New  Orleans,  13  La.  An.  E.,  105).  The 
eastern  line  of  the  city  of  St.  Louis,  as  it  was  incorporated  in 
1S09,  is  as  follows:  From  the  Sugar  Loaf  due  east  to  the  Missis- 
sippi;  "from  thence,  by  the  Mississippi,  to  the  place  first  men- 
tioned." The  Supreme  Court  of  the  United  States  held  that  tlie 
last  case  made  the  city  a  riparian  proprietor  upon  the  Mississi-ppi ; 
and,  as  such,  it  was  entitled  to  all  accretions  as  far  out  as  the 
middle  thread  of  the  stream.  And  it  was  declared  that  this  rule, 
60  well  established  as  to  fresh-water  rivers  generally,  is  not  varied 
l)v  the  circumstances  that  the  Mississippi,  at  St.  Louis,  is  a  great 
ai'.il  public  water-course;  and  that  the  rule,  with  respect  to  tide 


RULES  IN  RESPECT  TO  ALLUVION.  87 

water  rivers,  where  the  tide  ebbs  and  flows,  does  not  apply  tc 
such  a  case  as  that  stated  {Jones  v.  Goulard,  24  How.  li.,  41). 
And  in  this  connection  it  may  be  convenient  to  have  it  noted 
tliat  the  Supreme  Court  of  the  United  States  have  very  recently 
Iield  that  the  act  of  Congress  of  June  13,  1S12,  reserving  certain 
hinds  in  St.  Louis  for  the  benefit  of  the  public  schools  of  that  city, 
was  not  intended  to  reserve  lands  made  by  accretion  to^  lots  bor- 
dering on  the  river,  which  were  inhabited,  cultivated  and  pos- 
sessed by  persons  at  the  time  of  the  cession  of  1803,  and  which 
have  since  continued  to  be  so  inhabited  {Schools  v.  Risley,  10 
WaU.  B.,  91). 

In  matters  respecting  alluvion,  it  is  obvious  that  the  first  ques- 
tion to  be  settled  is  whether  the  accretions  are  in  fact  alluvion  or 
not.  If  they  have  been  made  by  a  lateral  increase,  that  is,  by 
impercej)tible  degrees,  so  that  no  one  can  know  how  much  was 
added  in  each  moment  of  time,  the  law  declares  the  accuninla- 
tions  to  be  alluvion ;  and  when  this  is  so  determined,  the  rule  is 
well  settled  that  the  alluvion  belongs  to  the  proprietor  of  the 
land  at  the  edge  of  the  water.  If  the  additional  soil  was  made 
suddenly,  and  not  by  imperceptible  degrees,  it  is  not  alluvion,  and 
belongs  to  the  owner  of  the  bed  of  the  stream,  or  the  soil  under 
the  water  where  it  originally  flowed. 

It  will  be  pertinent  and  useful  to  insert  in  this  place  an  extract 
from  some  very  learned  observations  made  by  the  late  Edward 
Livingston,  a  distinguished  jurist  and  statesman,  in  a  controversy 
in  the" early  part  of  the  present  century,  respecting  the  title  which 
lie  had  acquired  to  some  lands  at  New  Orleans,  formed  by  gradual 
deposits  from  the  annual  inundations  of  the  Mississippi  river,  and 
called  the  Batture.  It  was  contended,  in  opposition  to  Mr.  Liv- 
ingston's claim,  that  the  alluvion  must  be  formed  slowly  and 
imperceptibly,  so  that  the  time  of  the  incorporation  of  each  part 
with  the  original  soil  cannot  be  discovered  ;  and  that  the  land  in 
question  was  not  alluvion  because  its  increase  was  perccptihle. 
This  was  what  elicited  the  reply  which  is  contained  in  the  para- 
graph quoted.  Mr.  Livingston  said:  "When  the  ingenious  coun- 
sel can  analyze  the  different  deposits,  separate  the  sands  of  the 
Eed  river,  the  rich  mould  of  the  Mississippi  from  the  clay  and 
other  various  soils  which  the  Mississippi  receives  from  a  thousand 
^•ibutary  streams,  — when  he  can  dive  into  its  turbid  eddies,  watch 
he  moment  of  the  previous  deposit,  and  date  the  existence  of  each 


i 


88  i^TF   OF  BOUNDARIES. 

stratum  of  its  increase,  —  then  this  first  branch  of  the  authority  he 
has  cited  {quantum  quoque  teniporis  moinento  adjicientur)  may 
be  applicable  to  his  cause"  (2  IlalVs  Law  Journal^  307,  327,  328). 
Mr,  Livingston  eventually  sustained  his  claim  to  the  land,  though 
tlie  ''law's  delay"  was  such  that  the  fruits  of  his  victory  were  not 
fully  realized  in  his  own  lifetime, 

"  There  are  three  successive  stages  in  the  formation  of  alluvium, 
viz.,  the  crumbling  of  the  mineral  crust  of  the  earth,  by  the  action 
of  tides,  currents,  streams  and  atmospheric  agency  ;  the  transpor- 
tation of  the  loosened  fragments,  and  their  deposition  in  the  form 
of  alluvion  at  the  bottom  of  rivers,  lakes,  estuaries  and  the  ocean. 

"  The  mineral  substances  of  most  rocks  have  a  tendency  to  com- 
bine with  the  oxygon  of  the  atmosphere,  under  particular  condi- 
tions of  heat,  moisture  and  electricity;  carbonic  acid  and  water 
are  absorbed  by  many  rocks  ;  vicissitudes  of  temperature  tend  to 
expand,  contract,  split  and  disintregate  rocks;  lightning  often 
shivers  a  rock  into  innumerable  fragnients ;  every  shower  of  hail 
or  rain  works  off  fragments  more  or  less  numerous  from  the  sur- 
face of  rocks  ;  so  that  by  these  combined  agencies  of  air,  moisture, 
carbonic  acid,  heat,  electricity,  hail  and  rain,  there  is  a  constant 
wearing  of  the  substance  of  solid  rocks.  It  is  true  that  these 
agencies  work  very  slowly  when  the  bulk  of  the  rock  is  considered  ; 
but  as  time,  in  geological  phenomena,  is  reckoned  by  ages  or 
centuries  instead  of  by  years,  this  slowness  does  not  throw  any 
improbability  over  the  alleged  action  of  meteoric  fires  on  solid 
rocks. 

"  Another  kind  of  agency  is  the  power  of  a  running  stream  to 
wear  avay  the  banks  and  rocks  jvgainst  wliich  it  rubs.  The  force 
of  water,  when  directed  against  any  obstacle  in  its  course,  is  very 
considerable,  even  by  its  own  weight  alone,  especially  if  it  be 
flowing  over  a  highly  inclined  surface;  but  its  destructive  power 
is  greath'  augmented  if  it  be  loaded  with  sand  and  gravel,  *  * 
*  The  formation  of  valleys  by  the  erosive  power  of  running 
■water  is  another  cause  of  the  accumulation  of  alluvium.  *  *  * 
Among  the  Alps,  gorges  have  been  scooped  out  to  the  depth  of 
600  or  700  feet  by  the  action  of  running  water  alone.  Such  tacts 
as  these  are  sufficient  to  show  that  a  rapidly  flowing  river  exerts  a 
powerful  disintregating  force. 

"  The  wearing  and  transporting  powers  of  rivers  depend  upon 
the  volume  of  water,  the  quantity  and  size  of  tlie  solid  matte 


RULES   IX  RESPECT  TO   ALLUVIOX.  89 

saspended  and  the  velocity  with  which  it  moves.  *  *  *  The 
tortuous  courses  of  rivers  wliere  they  are  cut  through  solid  rock, 
as  in  the  case  of  the  Moselle,  whose  banks  are  sometimes  600  feet 
high,  are  among  the  strongest  proofs  of  the  destructive  power  of 
running  water ;  for  no  sudden  deluge,  however  powerful,  could 
have  scooped  out  such  a  trough ;  and  that  a  cleft  of  such  a  nature 
sliould  be  occasioned  by  any  disruption  of  the  earth's  crust  is  not 
less  improbable.  More  sudden,  and  therefore  more  striking, 
instances  of  the  waste  of  the  land  occur  where  a  river  flows 
through  a  lake,  and  by  its  wasting  action  causes  a  breaking  down 
of  the  barrier. 

"  The  distance  to  which  the  detached  fragments  are  carried 
depends  upon  the  volume  of  water,  and  the  nature  of  the  ground 
over  which  it  flows.  The  torrents  from  tlie  south-western  Alps, 
rushing  over  a  steep  uninterrupted  slope,  transport  large  blocks  to 
the  sea ;  but  a  river  that  runs  througli  a  long  stretch  of  level 
country  deposits  the  grosser  matter  in  the  upper  part  of  its  course, 
and  carries  to  its  mouth  only  that  which  is  more  easily  held  in 
suspension.  The  larger  stones,  after  being  detached  from  their 
parent  rock,  have  therefore  to  undergo  an  immediate  process  of 
abrasion,  by  being  rubbed  against  each  other  in  the  bed  of  the. 
stream,  before  their  particles  are  finally  committed  to  the  deep. 
If  a  river  pass  through  a  lake  in  its  course,  the  solid  matter  will 
be  deposited  in  that  trough  until  it  has  filled  it  up  ;  and  if  the 
lake  be  very  large  even  the  lighter  particles  will  have  time  to  fall, 
and  tlie  water  will  flow  out  clear  from  the  other  extremity. 
*  *  *  In  a  mountainous  country,  where  the  land  rises  rapidly 
from  the  shore,  the  rivers  descending  over  a  steep  bed  sweep  all 
the  contents  into  the  sea.  If  the  neighboring  sea  be  deep,  and  the 
tides  be  strong,  an  estuary  or  inlet  is  formed  at  the  mouth  of  the 
river;  that  is,  the  sea  forms  a  deep  indentation  into  the  land  of  a 
triangular  shape.  If,  on  the  other  hand,  a  low  shelving  shore, 
and  the  absence  of  strong  tidal  currents,  favor  the  gradual  and 
tranquil  deposit  of  the  solid  matter  brought  down  b}^  the  river, 
an  extensive  level  of  alluvial  land  is  formed.  *  *  *  Such, 
then,  are  the  numerous  modes  in  which  alluvium  is  formed,  and 
fitted  to  become  the  basis  of  a  rich  vegetable  soil,  by  converting 
into  dry  land  tracts  which  were  before  covered  with  water" 
{Rational  Cyelopmlia,  vol.  1,  tit.  ^'' Alluvium''^).  Perhaps  these 
smements  may  be  regarded  as  more  scientific,  than  anything 
12 


90  i^ir   OF  BOUNDARIES. 

else,  but  tliey  will  help  to  enable  one  to  determine  what  is  legal 
alluvion  in  a  given  case. 

In  determining  tlie  manner  in  which  land  formed  by  alluvion 
in  a  river  is  to  be  divided  among  the  several  riparian  proprietors 
entitled  to  it,  the  courts  have  established  well-defined  rules.  A 
case  has  but  just  been  decided  by  the  Supreme  Judicial  Court  of 
New  Hampshire,  which  involved  the  right  to  land  formed  by 
alluvion,  on  the  bank  of  a  river  not  navigable,  by  the  gradual 
wearing  away  of  the  opposite  bank.  The  court  declared  that  in 
such  a  case  the  ordinary  rule  for  dividing  the  alluvion  among  the 
riparian  owners  entitled  to  it,  is  to  ascertain  the  length  of  the  old 
shore  line,  and  of  the  part  of  it  belonging  to  each  proprietor ; 
then  measure  off  for  each  proj^rietor  a  part  of  the  new  shore  line 
in  proportion  to  what  he  held  in  the  old  shore  line ;  and  then 
draw  lines  from  the  boundaries  at  the  ancient  bank  to  the  points 
of  division  on  the  new  shore  as  thus  ascertained.  In  this  way,  it 
was  said,  if  such  land  is  formed  in  the  bend  of  a  river,  and  the 
new  shore  line  is  just  one-half  the  length  of  the  old  one,  each  pro- 
prietor will  take  of  the  new  shore  line  just  one-half  the  extent  of 
his  former  shore  {Batchelder  v.  JTenisten,  51  J^.Il.R.,  496;  S.  6*1,7 
Alh.  L.  J.,  317). 

At  an  early  day,  the  Supreme  Judicial  Court  of  Massachusetts 
adopted  the  following  rule  upon  the  subject :  1.  To  measure  the 
whole  extent  of  the  ancient  banks  or  line  of  the  river,  and  com- 
pute how  many  rods,  yards  or  feet  each  riparian  proprietor  owned 
on  the  river  line.  2.  The  next  step  is,  supposing  the  former  line, 
for  instance,  to  amount  to  200  rods,  to  divide  the  newly-formed 
bank  or  river  line  into  200  equal  parts,  and  appropriate  to  each 
proprietor  as  many  portions  of  this  new  river  line  as  he  owned 
rods  on  the  old ;  when,  to  complete  the  division,  lines  are  to  be 
drawm  from  the  points  at  which  the  proprietors  respectively 
bounded  on  the  old,  to  the  points  thus  determined,  as  the  points 
of  division  on  the  newly-formed  shore.  The  new  lines  thus 
formed,  it  was  said,  will  be  either  parallel,  or  divergent,  or  con- 
vergent, according  as  the  neio  shore  line  of  the  river  equals,  or 
exceeds,  or  falls  short  of  the  old.  The  court  said,  however,  that 
the  rule  may  require  modification,  perhaps,  under  particular  cir- 
cumstances. For  instance,  in  applying  the  rule  to  the  ancient 
margin  of  the  river,  to  ascertain  the  extent  of  each  proprietor's 
title  on  that  margin,  the  general  line  ought  to  be  taken,  and  not 


RULES  IX  RESPECT  TO  RELICTION.  91 

tlie  actual  length  of  the  line  as  that  margin,  if  it  happens  to  he 
elongated  by  deep  indentations  or  sharp  projections.  In  such  a 
case,  the  court  declared  it  should  be  reduced  by  an  equitable  and 
judicious  estimate  to  the  general  available  line  of  the  land  upon 
the  river  {Deerfield  v.  Ames,  17  Pick.  R.,  45,  46).  The  same 
court  reaffirmed  the  rule  in  a  more  recent  case,  wherein  Shaw,  C. 
J.,  said :  "  The  effect  of  this  rule  is,  to  give  to  each  proprietor  a 
length  on  the  new  water-line  proportioned  to  his  length  on  the  old 
water-line,  whether  the  one  be  longer  or  shorter  than  the  other  " 
{Trustees  of  Hopkins  Academy  v.  Dickinson,  9  Gush.  7?.,  544, 
553).  And  the  Supreme  Court  of  tlie  United  States  have  declared 
their  adherence  to  the  same  rule.  In  a  late  case  before  that  dis- 
tinguished court,  Mr.  Justice  Swayne,  speaking  of  the  rule  laid 
down  in  the  l7th  Pickering,  said :  "  With  the  qualification 
stated,  it  may  be  considered  as  embodying  the  views  of  this 
court  upon  the  subject"  {Johnston  \.  Jones,!  BlacFs  12.,  209, 
223  ;  vide  also  Jones  v.  Johnston,  18  IIoiv.  U.  8.  R.,  150  ;  Emer- 
son V.  Taylor^  9  Greenl.  R.,  44 ;  Newton  v.  Eddy,  23  Vt.  R., 
319). 

The  subject  of  reliction  is  closely  allied  with  that  of  alluvion, 
and  both  subjects  are  governed  by  similar  rules.  The  word  relic- 
tion signifies  land  left  permanently  uncovered  by  the  retreat  of 
the  sea  or  other  water,  and  the  principles  of  law  which  have  been 
considered  with  respect  to  encroachments  by  the  land  upon  the 
water  apply  also  to  the  converse  case  of  encroachments  by  the 
water  upon  the  land.  Therefore,  if  the  sea  rises  gradually  and 
imperceptibly,  the  proprietors  whose  lands  are  submerged  have 
no  remedy  against  the  sovereign,  whose  property  will  conse- 
quently extend  as  tar  as  the  new  high-water  mark  {In  re  The 
Hull  and  Selhy  RailvKty  Company,  5  Mees.  <&  Welsh.  R.,  327). 
But  if  the  encroachment  of  the  water  is  sudden  and  violent  no 
change  of  property  takes  place,  and  therefore,  upon  the  recession 
of  this  water  after  the  inundation,  every  owner  will  take  his  land 
again  if  it  can  be  known  by  its  boundaries  {Schultes,  122;  Inst., 
lib.  II,  tit.  1,  24  ;  1  Thomas  Co.  Litt.,  47,  7i.).  If  the  water  in  a 
navigable  lake  recede  gradually  and  insensibly,  the  land  gained 
belongs  to  the  adjacent  riparian  owners.  But  if  the  reliction  be 
sudden,  the  increase  belongs  to  the  State.  So  held  in  a  case  in 
North  Carolina,  wherein  it  was  proved  that  the  lake,  upon  which 
W  the  lands  in  question  were  bounded,  was  navigable;  and  Hall,  J., 


92  LAW  OF  BOUXDARIES. 


% 


in  delivering  the  opinion  of  the  court,  said :  "  If  the  recession  of 
the  lake  was  sudden  and  sensible,  the  land  which  it  had  covered, 
and  which,  by  its  dereliction,  became  dry,  would  not  be  and  onght 
not  to  be  included  in  the  defendant's  grant.  But  if  the  water 
receded  gradually  and  insensibly,  the  lake  ought  to  be  considered 
one  of  the  defendant's  boundaries.  It  is,  therefore,  necessary  that 
the  fact  be  found  whether  the  waters  of  the  lake  receded  imper- 
ceptibly or  not  from  the  land  in  dispute;  because  on  that  ques- 
tion the  rights  of  the  parties  depend"  {Murry  v.  Sermon,  1 
Hawks'  i?.,  56). 

From  these  principles  it  follows  that  if  a  navigable  river  slowly 
and  imperceptibly  changes  its  course,  the  boundaries  of  the  pro- 
perty adjoining  the  banks  will  gradually  shift  with  the  new  chan- 
nel ;  but  that  if  the  change  be  sudden,  no  alteration  of  the  bounda- 
ries will  take  place.  If  a  navigable  river  suddenly  forsakes  its 
natural  channel  and  flows  in  another  bed,  the  old  bed  will,  by  the 
law  of  England,  belong  to  the  crown,  on  the  same  principle  as 
land  suddenly  relicted  by  the  sea ;  but,  by  the  civil  law,  it  will 
belong  to  the  owners  of  the  land  on  each  side,  in  the  same  man- 
ner as  an  island  formed  in  a  navigable  river.  According  to  the 
civil  law,  the  river  bed  follows  the  condition  of  the  river  and 
becomes  public ;  or,  rather,  the  use  of  it  becomes  public,  while 
the  property  in  the  soil  remains  to  its  former  owners  {Sandars^ 
Inst.,  lib.  II,  tit.  1,  22).  By  the  common  law,  also,  it  would  seem 
that  the  ownership  of  the  new  bed  is  not  altered,  but  remains  in  its 
former  proprietors,  subject  to  public  uses  (  Vide  The  Mayor  of 
Carlisle  v.  Graham,  4  L.  R.  Exch.,  361).  Should  the  river  after- 
ward resume  its  old  channel,  the  strict  rule  of  the  civil  law  assigns 
the  new  bed  to  the  owners  of  the  adjacent  lands ;  though  in  reason 
and  equity  it  should  be  returned  to  its  former  owners,  if  they  are 
known  ;  and  by  the  common  law  there  can  be  no  doubt  that  the 
ownership  of  the  new  bed  will  remain  in  those  to  whom  it  belonged 
before  any  change  in  the  river  took  place,  unless  the  alteration  in 
the  new  channel  has  been  so  slow  and  gradual  that  the  original 
boundaries  have  been  lost  {Ilale  De  Jure  Maris,  5,  6,  11,  13, 16 
37).  And  if  a  private  stream,  which  is  the  boundary  between 
the  lands  of  two  proprietors,  gradually  and  imperceptibly  changes 
its  course,  the  proprietor  whose  ground  is  encroached  upon  can 
claim  nothing  from  his  opposite  neighbor ;  but  the  boundary  line 
between  them  will  shift  with  the  gradual  change  of  the  river. 


RULES  IN  RESPECT  TO  RELICTION.  93 

If,  however,  the  course  of  the  river  is  diverted  bj  some  sudden 
catastrophe,  no  change  of  property  will  take  phice,  and  the 
medium  Jilum  of  the  old  river  will  continue  to  mark  the  limits  of 
the  two  estates  {Vide  SchuUes,  121;  F'ord  v.  Zacei/,  2  Ju?\  N. 
S.,  684). 

The  exact  language  of  the  civil  law  upon  the  subject  is  this : 
''  If  a  river,  entirel  y  forsaking  its  natural  channel,  hath  begun  to 
flow  elsewhere,  the  first  channel  appertains  to  those  who  possess 
the  lands  close  to  the  banks  of  it,  in  proportion  to  the  extent  of 
each  man's  estate  next  to  such  banks ;  and  the  new  channel  par- 
takes of  the  nature  of  the  river  and  becomes  public.  Aud  if, 
after  some  time,  the  river  returns  to  its  former  channel,  the  new 
channel  again  becomes  the  property  of  those  who  possess  the 
lands  contiguous  to  its  banks"  {Just.  Inst.,  lib.  II,  tit.  1,  §  23). 
And  this  doctrine  is  certainly  very  reasonable,  and  does  not 
appear  to  be  at  variance  with  that  of  the  common  law;  but,  it  is 
believed,  that  it  can  be  clearly  inferred  from  the  principles  of  that 
law,  applicable  to  public  rivers. 

The  law  relating  to  alluvion  and  reliction  is  very  succinctly 
stated  by  Judge  Blackstone.  He  says  :  "  As  to  lands  gained  from 
the  sea,  either  by  alluvion,  by  the  washing  up  of  sand  and  earth,- 
60  as  in  time  to  make  tei'ra  jinna,  or  by  dereliction,  as  when  the 
sea  shrinks  back  below  the  usual  water  mark ;  in  these  cases  the 
law  is  held  to  be  that,  if  this  gain  be  by  little  and  little,  by  small 
and  imperceptible  degrees,  it  shall  go  to  the  owner  of  the  land 
adjoining.  For  de  tninimis  nan  curat  lex  j  and,  besides,  tliese 
owners  being  often  losers  by  the  breaking  in  of  the  sea,  or  at 
charges  to  keep  it  out,  this  possible  gain  is,  therefore,  a  reciprocal 
consideration  for  such  possible  charge  or  loss  ;  but  if  the  alluvion 
or  dereliction  be  sudden  and  considerable,  in  this  case  it  belongs 
to  the  king ;  for  as  the  king  is  lord  of  the  sea,  and,  so,  owner  of 
tlie  soil  while  it  is  covered  with  water,  it  is  but  reasonable  he 
should  have  the  soil  when  the  water  has  left  it  dry ;  so  that  the 
quantity  of  ground  gained  and  the  time  during  which  it  is  gained 
are  what  make  it  either  the  king's  or  the  subject's  property.  In 
the  same  manner,  if  a  river,  running  between  two  lordships,  by 
degrees  gains  upon  the  one,  and  thereby  leaves  the  other  dry,  the 
owner  who  loses  his  ground  thus  imperceptibly  has  no  remedy ; 
j^iut  if  the  course  of  the  river  be  changed  by  a  sudden  and  violent 
nood,  or  other  hasty  means,  and  thereby  a  man  loses  his  ground, 


94  LAW   OF  BOUNDARIES. 

it  is  said  that  he  shall  have  what  the  river  has  left  in  any  other 
place  as  a  recompense  for  this  sudden  loss"  (2  Black.  Com.,  262). 

Mr.  Schnltes,  in  his  able  treatise  on  Aquatic  Rights,  draws  the 
conclusion,  "  that  all  islands,  relicted  land,  and  other  increase 
arising  in  tlie  sea  and  in  navigable  streams,  except  under  local 
circumstances  before  alluded  to,  belong  to  the  crown ;  and  that 
all  islands,  relicted  land,  and  the  soil  of  inland  ui^navigable  rivers 
and  streams,  under  similar  circumstances  belong  to  the  proprietors 
of  the  estates  to  wliich  such  rivers  act  as  boundaries ;  and  hence 
it  may  be  considered  as  lire',  that  all  islands,  sand  beds  or  other 
parcels  of  agglomerated  or  concreted  earth  which  newly  arise  in 
rivers,  or  congregate  to  their  banks  hj  alluvion,  reliction  or  other 
aqueous  means,  as  is  frequently  observed  in  rivers  where  the  cur- 
rent is  irregular,  such  accumulated  or  relicted  property  belongs  to 
the  owners  of  the  neighboring  estates"  (Sc/iidtes  07i  Aquatic 
Bights,  138). 

It  may  be  convenient  to  understand  the  meaning  of  the  phrase 
"  bank  of  a  river,"  or  "  bank  of  a  stream."  The  courts  have 
decided  that  a  bank  is  the  continuous  margin  where  vegetation 
ceases  ;  the  shore  is  the  sandy  space  between  it  and  low-water 
mark.  That  is  to  saj',  such  has  been  held  to  be  the  rule  in  Penn- 
sylvania {McCtdlough  V.  Wainwright,  14  Penn.  li.,  171).  By 
the  civil  law  if  a  piece  of  land  is  torn  by  the  violence  of  a  stream 
from  one  man's  land  and  carried  to  the  land  of  another,  it  remains 
the  property  of  its  former  owner,  if  it  can  be  detached  from  its 
resting  phice ;  but  if  it  is  allowed  to  remain  for  so  long  a  time 
tliat  it  unites  with  the  neighboring  soil,  and  the  trees  which  it 
sweeps  away  with  it  take  root  in  the  ground,  it  will  be  lost  to  its 
former  owner,  and  become  the  property  of  him  to  whose  land  it 
has  been  carried  {Inst.,  lih.  II,  tit.  1,  21).  This  is  called  avulsion, 
and  the  rule  of  the  civil  law  in  relation  to  it  would  seem  to  be  as 
applicable  to  the  common  law  as  to  the  civil  law.  It  has  been 
suggested,  however,  that  an  equitable  action  will  lie  in  such  case 
to  recover  the  value  of  the  piece  of  ground  so  carried  away  and 
united  with  the  neighboring  land  {Vide  Colguin^s  Siimmary^ 
%  981). 


SEA-WALLS  AND    THE  LIKE.  95 


CHAPTER  YIII. 

THE  LAW  OF  BOUNDARY  AS  RELATES  TO  SEA-WALLS,  EMBANKMENTS, 
PURPRESTURES,  AND  THE  LIKE THE  RULE  AS  APPLIED  TO  NAVIGA- 
BLE STREAMS THE  SCOTTISH  AND  ROMAN  LAWS  UPON  THE  SUB- 
JECT  DUTY  OF  PRESERVING  SEA-WALLS  AND  THE  LIKE. 

Although  the  subject  of  encroachinents  upon  lands  belonging 
to  the  public  or  individuals,  or  upon  the  sea  or  other  navigable 
waters,  is  not  directly  involved  in  the  question  of  boundary,  yet 
it  is  so  closely  related  to  it  that  a  brief  reference  to  it  may  pro- 
perly be  made  in  this  place.     By  the  rule  of  the  civil  law  the 
interdictum  utile  lies  against  any  one  who  projects  a  mole  into 
the  sea  at  the  suit  of  persons  who  are  thereby  injured,  but  if  no 
one  sustains  any  injury  he  who  builds  on  the  sea-shore  or  projects 
a  mule  into  the  sea  is  protected  {Digest,  43,  8,  3).     And  by  the 
same  law  it  is  said  that  to  repair  and  strengthen  the  baidvs  of  a 
public  river,  so  long  as  the  navigation  is  not  hindered,  is  most 
useful  {Dig.,  43,  15,  1).     In  Scotland,  it  has  been  held  that  the 
owner   of   property   adjoining   the   sea-shore    may  prevent   the 
encroachments  of  the  water  by  artificial  operations,  and  even  by 
such  means  gain  upon   the  sea,  although  some  doubt  has  been 
thrown  upon  the  accuracy  of  these  decisions  by  Mr.  Bell  in  his 
Commentaries  on  Scotch  Law.     The  decisions  of  the  courts,  how- 
ever, carry  the  doctrine  to  the  extent  stated  (  Vide  Smith  v.  Earl 
of  Stair,  G  BeWs  Appeal  Cases,  487  ;  BelVs  Com.,  723).    But  the 
rule  is  not  extended  so  far  by  the  common  law,  or  the  law  of 
England.     There  can  be  no  doubt  that  by  the  law  of  England 
encroachments  cannot  be  made  on  the  property  of  the  crown   or 
its  grantee  {Todd  v.  Dunlop,  2  Roh.  Scotch  App.,  333 ;  Smart  v. 
Council  of  Dundee,  8  Bro.  Par.   Cases,  n<d',  Round  on   Rip. 
Owners,  7 ;  Hale  de  Jure  Maris,  85).     But  if  an  embankment 
Avhich  is  lawfully  made  on  a  man's  own  land  cause  a  silting  up  of 
sand  and  mud,  whereby  soil  is  gradually  gained  from  the  sea,  the 
owner  of  the  embankment  would  appear  to  be  entitled  to  this 
increase,  upon  the  principles  laid  down  in  respect  to  alluvion  and 
reliction  (  Vide  Attorney- General  v.  Chamlers,  4  Be  G.  S  Jo.  R., 
68,  70).     An  encroachment  upon  the  king,  either  upon  part  of 
'    the  demesne  lauds,  or  in  the  highways,  public  rivers,  harbors  or 


00  LAW   OF  BOUXDARIES. 

common  streets,  is  called  a  piirprestnre.  This  M'ord  frequently 
occurs  in  the  judicial  reports  of  both  this  country  and  England, 
and  invariably  signities  an  encroachment  of  this  kind.  Remedies 
for  this  species  of  injury  are  prescribed,  but  it  is  not  necessary  to 
refer  to  them  here. 

A  man  may  raise  an  embankment  on  his  own  property  to  pre- 
vent the  encroachments  of  the  sea,  although  the  effect  of  his 
doing  so  may  be  to  cause  the  water  to  beat  with  violence  against 
the  adjoining  land,  thereby  rendering  it  necessary  for  the  adjoin- 
ing landowner  to  enlarge  or  strengthen  his  defenses  {Rex  v.  Pag- 
Jiam  CoTiimissioners,  8  Barn.  <&  Ores,  i?.,  355).  But  this  doctrine 
is  not  applicable  in  the  case  of  embankments  by  the  side  of  a 
river,  whether  public  or  private;  and  therefore  if  a  riparian 
owner  embank  against  an  apprehended  alteration  of  the  old  chan- 
nel, he  must  take  care  in  doing  so  that  he  does  not  injure  the 
property  of  adjoining  or  opposite  proprietors  {Menzies  v.  Broad- 
alhane,  3  Wilson  (&  Shaw's  B.,  243).  It  is  a  well-known  foct, 
that  the  sea  occasionally,  by  some  change  proceeding  from  natural 
and  unknown  causes,  makes  gradual  inroads  on  parts  of  a  coast 
which  had  been  free  from  its  waters  for  centuries.  On  such 
occurrences  it  has  been  compared,  and  justly  compared,  to  a  com- 
mon enemy  against  which  every  person  may  defend  himself  as  he 
can ;  but  this  is  perfectly  dift'erent  from  an  occasional  course  of 
superabundant  inland  water,  flowing  in  the  same  direction, 
whenever  the  occasion  happens,  and  the  ordinary  channel  is 
become  insufficient  to  carry  it  off.  In  the  one  case,  if  the  works 
be  successful,  the  water  is  prevented  from  coming  where,  within 
time  of  memory  at  least,  it  never  had  come  ;  in  the  other,  it  is 
prevented  from  passing  in  the  way  in  which,  when  the  occasion 
happened,  it  had  been  always  accustomed  to  pass.  An  interesting 
case  involving  these  principles  was  decided  by  the  English  Court 
of  King's  Bench  about  forty  years  ago.  The  case  was  an  indict- 
ment for  nuisance  to  a  public  canal  navigation  established  by  act 
of  Parliament,  in  which  it  appeared  that  the  canal  was  carried 
across  a  river  and  the  adjoining  valley  by  means  of  an  aqueduct 
and  an  embankment  in  which  were  several  arches  and  culverts ; 
that  a  brook  fell  into  the  river  above  its  point  of  intersection  wnth 
the  canal ;  and  that  in  times  of  flood  the  water,  which  was  thus 
forced  back  into  the  brook,  overflowed  its  banks,  and  was  carried, 
by   the  natural   level   of  the   country,   to   the  above-mentioned 


SEA-WALLS  AXD    THE  LIKE.  97 

arches,  and  through  them  to  the  river,  doing,  however,  much 
mischief  to  the  hxiuls  over  which  it  passed  ;  that  except  for  the 
imisauce  after  mentioned,  the  aqueduct  would  be  snfiicientlj  M'ide 
for  the  passage  of  the  river  at  all  times  but  those  of  high  flood, 
notwithstanding  the  improved  drainage  of  the  country,  which  had 
increased  the  body  of  water  ;  that  the  defendants,  occupiers  of 
lands  adjoining  the-  river  and  brook,  had  for  the  protection  of 
their  lands,  subsequently  to  the  making  of  the  canal,  aqueduct  and 
embankment,  erected,  or  heightened,  certain  artificial  banks, 
called  fenders,  on  their  respective  properties,  so  as  to  prevent  the 
flood-water  from  esca[)ing  as  above  mentioned  ;  and  that  the  water 
had  consequently,  in  time  of  flood,  come  down  in  so  lai-ge  a  body 
against  the  aqueduct  and  canal  banks  as  to  endanger  them  and 
obstruct  the  navigation  ;  that  the  fenders  were  not  unnecessarily 
high,  and  that,  if  they  were  reduced,  many  hundred  acres  of  land 
would  again  be  exposed  to  inundation. 

The  court  held  that  the  defendants  were  not  justified,  under 
these  circumstances,  in  altering  for  their  own  benefit  the  course  in 
which  the  flood-water  had  been  accustomed  to  run  ;  that  there  was 
no  difference  in  this  respect  between  flood-water  and  an  ordinary 
stream  ;  that  an  action  on  the  case  would  have  lain  at  the  suit  of  • 
an  individual  for  such  diversion,  and  consequently  that  an  indict- 
ment would  lay  where  the  act  affected  the  public  {The  King  v. 
Traford,  1  Bar7i.  <&  Ad.  R.,  874  ;  S.  <7.,  20  Eng.  C.  L.  A\,  498). 
Lord  Tenterden,  Ch.  J.,  who  delivered  the  opinion  of  the  court, 
took  a  distinction  between  this  and  the  Pagham  case  in  Barnewell 
and  Adolphus  before  referred  to.  That  was  a  case  where  com- 
missioners of  rivers,  acting  in  good  faith  for  the  benefit  of  the 
levels  for  which  they  were  appointed,  erected  certain  defenses 
against  the  inroads  of  the  sea,  which  caused  it  to  flow  with  greater 
violence  against,  and  injure  the  adjoining  land  not  within  the 
levels ;  and  the  Court  of  King's  Bench  held  that  they  could  not 
be  compelled  to  make  com[)ensation  to  the  owner  of  the  land,  or 
to  erect  new  works  for  his  protection  ;  for  that  all  owners  of  land 
exposed  to  the  inroads  of  the  sea,  or  commissioners  of  sewers  act- 
ing for  a  number  of  landowners  have  a  right  to  erect  such  works 
as  are  necessary  for  their  own  protection,  even  although  thej^  may 
be  prejudicial  to  others.  The  Lord  Chief  Justice,  in  his  opinion, 
observed  :  "  Now,  is  there  any  authority  for  saying  tliat  any  pro- 
prietor of  land  exposed  to  the  inroads  of  the  sea  may  not  endeavo?: 
13 


98  i^ir  OF  BOUNDARIES. 

to  protect  himself  by  erecting  a  groyne  or  other  reasonable  defense, 
although  it  may  render  it  necessary  for  the  owner  of  the  adjoin 
ing  land  to  do  the  like  ?  I  certainly  am  not  aware  of  any  author- 
ity or  principle  of  law  which  can  prevent  him  from  so  doing. 
*  *  *  I  am,  therefore,  of  opinion  that  the  only  safe  rule  to 
lay  down  is  this,  that  each  landowner  for  himself,  or  the  commis- 
sioners acting  for  several  landowners,  may  erect  such  defenses  for 
the  land  under  their  care  as  the  necessity  of  the  case  requires, 
leaving  it  to  others,  in  like  manner,  to  protect  tliemselves  against 
the  common  enemy." 

Bayley,  J.,  said  :  "  I  am  entirely  of  the  same  opinion.  It  seems 
to  me  that  every  landowner,  exposed  to  the  inroads  of  the  sea, 
has  a  right  to  protect  himself,  and  is  justified  in  making  and 
erecting  such  works  as  are  necessary  for  that  purpose ;  and  the 
commissioners  may  ei-ect  such  defenses  as  are  necessary  for  the 
land  intrusted  to  their  superintendence."  Of  course,  the  party 
must  act  in  good  faith,  and  do  no  more  than  is  reasonably  neces- 
sary to  protect  his  lands  fi-om  the  encroachments  of  the  sea  {Bex  v. 
Pag/iam,  8  Ban}.  &  Ad.  i?.,  355).  Tlie  rule  is,  therefore,  quite 
obvious  in  respect  to  lands  bounded  upon  the  sea;  but  it  is  alto- 
gether different  in  respect  to  lands  bounded  upon  a  river,  whether 
public  or  private.  Xo  building  or  erection  may  be  set  up  in  the 
alveus  of  a  river,  Mdiether  it  is  navigable  or  private,  because  in 
course  of  time  the  flow  of  the  stream  may  be  interfered  with ; 
and  therefore,  said  Lord  Westbury,  "any  encroachment  upon  the 
alveus  of  a  river  may  be  complained  of  by  an  adjacent  or  an  ex 
adverse  proprietor,  without  the  necessity  of  proving  either  that 
damage  has  been  sustained  or  that  it  is  likely  to  be  sustained  from 
that  cause"  {Bichett  v.  Morris,  1  L.  i?.,  Scotch  A^ypeals,  60  ;  and 
vide  Attortiey-Gen.  v.  Zo7isdale,  7  Z.  B.,  Fq.,  377;  Brownlow  v. 
Metropolitan  Board  of  Works,  13  Com.  Bench  R.  \N.  S.'\ ,  768 ; 
Crachiell  v.  Mayor  of  Thetford,  4  L.  R.,  C.  P.,  629 ;  Wishart  v. 
Wyllie,  1  Macq.  R.,  389 ;  Brown  v.  Gicpy,  2  Moore,  P.  C.  C, 
341). 

An  important  case  came  before  the  courts  of  New  York  not 
many  years  ago,  in  which  these  principles  were  discussed,  and  the 
rules  declared  in  respect  to  unnavigable  streams.  The  action  was 
brought  in  the  Supreme  Court  to  recover  damages  for  obstructing 
the  waters  of  the  Oriskany  creek  by  means  of  a  dam,  and  causing 
them  to  set  back  upon  the  premises  of  the  plaiutiff.     The  Supreme 


SEA-WALLS  AND    THE  LIKE.  99 

Court  held  that  individuals  owning  the  bed  of  a  stream,  and  each 
bank  tliereof,  have  the  right  to  build  a  dam  and  embankment,  and 
raise  the  water  of  the  stream  as  high  as  they  please,  subject  only 
to  the  restriction  resting  upon  all,  so  to  enjoy  their  own  property 
as  not  to  injure  that  of  another  person,  with  the  qualifications  and 
limitations 'incident  to  that  rule  of  property.     And  that  if  they, 
in  the  exercise  of  that  right,  build,  with  due  care,  an  embankment 
to  prevent  the  water,  when  raised  by  their  dam  above  the  natural 
bank  of  the  stream,  from  overflowing  the  lands  of  adjacent  own- 
ers, and,  in  consequence  of  raising  their  dam,  the  water  finds  its 
way  through  their  own  natural  soil,  and  below  the  surface  thereof, 
by  filtration,  percolation  or  otherwise,  to  the  land  of  an  adjacent 
proprietor,  the  owners  of  such  dam  and  embankment  are  not,  in 
the  absence  of  any  unskillfulness,  negligence  or  malice,  liable  to 
such  adjacent  proprietor  for  any  damage  he  may  sustain  therel)y  ; 
the  injury  being  dammtm  absque  injuria  {Pixley  v.  Clarl',  32 
Barl.  i?.,  268)^   The  case  was  taken  to  th-e  Court  of  A])peals, 
where  the  judgment  of  the  Supreme  Court  was  reversed  by  a 
divided  court,  and  the  law  declared  to  be:  If  riparian  proprietors 
use  a  water-course  in  such  a  manner  as  to  inundate  or  overflow 
the  lands  of  another,  an  action  will  lie.     If,  by  raising  the  water 
in  a  natural  stream  above  its  natural  banks,  and  to  prevent  its 
overflow,  artificial  embankments  are  constructed  which  answer 
the  purpose  perfectly;  yet  if,  by  the  pressure  of  the  water  upon 
the  natural  banks  of  the  stream,  percolation  takes  place  so  as  tc 
drown  the  adjoining  lands  of  another,  an  action  will  lie  for  the 
damage  occasioned,  thereby.     And  it  was  declared  that  it  matters 
not  whether  the  damage  is  occasioned  by  the  overfloio  of  or  the 
'percolation  through  the  natural  banks,  so  long  as  the  result  is 
occasioned  by  an  improper  interference  with  the  natural  flow  of 
the  stream.     Peckham,  J.,  in  an  elaborate  and  learned  opinion, 
among  other   things,  said:    "The  case,  then,  stands  thus:   The 
defendants  are  held  for  drowning  the  plaintift^s  land  by  an  unau- 
thorized interference  with  a  surface  stream,  by  pressing  a  part  of 
that  stream  through  its  banks,  by  means  of  their  artificial  works, 
into  the  lands  of  the  plaintiff"  to  his   injury.     The   defendants 
answer,  true,  we  did  that  for  our  benefit ;  but  the  law  allows  a 
party  to  interfere  with  underground,  dead  or  percolating  water 
by  sinking  a  well  or  digging  drains  on  his  own  land.     The  reply 
is,  we  have   interfered  with  a  surface  stream,  not  with  under 


100  LAW  OF  BOUNDARIES. 

ground  percolating  water,  and  hence  the  doctrhie  of  those  cases 
aftbrds  jou  no  protection.  Tlie  point  is,  that  the  defendants,  bj 
their  interference  with  a  surface  stream,  have  wrongfully  pressed 
a  part  of  it  into  percolated  water,  and  thus  drowned  the  plain- 
tiff's land.  -^  *  *  An  owner  may  dig  upon  or  cultivate  his 
own  land  at  liis  pleasure,  though  he  cut  off,  or  open,  water  circu- 
lating or  dead  under  the  earth,  to  his  neighbor's  injury.  Such 
water  is  not  different  from  the  earth  itself.  He  owns  it.  He  does 
not  own  the  water  of  a  surface  stream,  and  cannot  set  it  back  to 
another's  injury  without  liability.  *  *  *  J  have  thus  exam- 
ined all  the  grounds  on  which  the  right  to  do  this  injury  is  based, 
and  deem  them  all  untenal>le.  The  defendants  having  violated 
the  rights  of  the  plaintiff,  and  flowed  his  land  to  his  damage,  law 
and  justice  alike  require  that  they  should  pay  that  damage  "  {Plx- 
ley  v.  Clarh,  35  W.  Y.  E.,  520,  529-532).  So  it  seems  that  a  man 
may  raise  an  embankment  on  his  own  property  to  prevent  the 
encroachments  of  the  sea,  even  though  it  may  have  the  effect  to 
impose  a  burden  upon  the  adjoining  proprietor ;  but  the  rule 
does  not  apply  in  the  case  of  embankments  by  the  side  of  a  river 
or  other  inland  stream.  When  it  is  said  that  proprietors  along 
the  banks  of  a  private  river  are  entitled  to  the  bed  of  the  stream 
as  their  property  xisque  ad  viediuiiti  filum,  it  does  not  by  any 
means  follow  that  that  property  is  capable  of  being  used  in  the 
ordinary  way  in  which  so  much  land  uncovered  with  water  might 
be  nsed  ;  but  it  must  be  used  in  such  a  manner  as  not  to  affect 
the  interest  of  riparian  proprietors  in  the  stream.  Now,  the 
interest  of  a  riparian  proprietor  in  the  stream  is  not  only  to  the 
extent  of  preventing  its  being  diverted  or  diminished,  but  it 
would  extend  also  to  prevent  the  course  being  so  interfered  with 
or  affected  as  to  direct  the  current  in  any  different  way  that  might 
possibly  be  attended  with  damage  at  a  future  period  to  another 
proprietor.  Tliis  is  the  doctrine  laid  down  by  Lord  Westbury  in 
a  case  before  referred  to,  and  it  is  in  accordance  with  the  authori- 
ties {Blchett  v.  Morris,  1  L.  7?.,  Sc.  Aj)p.,  61).  The  Lord 
Chancellor  of  England,  in  a  case  in  the  House  of  Lords,  on  appeal 
from  the  Court  of  Session  in  Scotland,  laid  down  the  law  upon 
the  subject  thus :  "  But  let  us  see  what  is  said  on  this  subject  by 
the  institutional  writers  on  the  Law  of  Scotland.  Erskine,  in  his 
Institutes,  is  distinct,  as  it  appears  to  me,  and  precise  upon  the 
subject.     He  says  :  '  AVhere  a  river  threatens  an  alteration  of  the 


SEA-WALLS  AND    THE  LIKE.  101 

present  channel,  by  which  damage  may  arise  to  the  proprietor  of 
the  adjacent  or  opposite  ground,  it  is  lawful  for  him  to  build  a 
bulwark  rij)ce  muniendce  causa,  to  prevent  the  loss  of  ground  that 
is   threatened   by   that   encroachment  ; '    so   that   the   proprietor 
whose  lands  are  threatened  to  be  washed  away  may,  for  the  pur- 
pose of  protecting  his  own  property  in  a  case  of  that  description, 
raise  a  bank  for  his  own  security;  but  this  bulwark  must  be  so 
executed  as  to  prejudice  neither  the  navigation,  nor  the  grounds 
on  the  opposite  side  of  the  river ;  'and  as  a  guard  against  these 
consequences,  the  builder,  before  he  began  his  work,  was  obliged 
by  the  Roman  law  to  give   security.     Nothing,  therefore,  can  be 
more  distinct  and  precise  than  the  language  of  Erskine,  in  his 
Institutes,  with  respect  to  this  particular  case.     lie  says  :  '  You 
may  protect  your  own  property  from  destruction  ; '  so  you  may 
by  the  law  of  England;  but  he  says  in  distinct  terms:  '  Though 
the  river  threatens  to  change  its  channel,  and  to  encroach   upon 
your   land,  you  cannot  protect  yourself  to  the  prejudice   of  the 
opposite  proprietor.'     Lord  Stair,  in  his  Institutes,  though  not  so 
clear  and  precise,  yet  in  general  terms,   confirms  that  which  is 
laid  down  by   Erskine  in  his   Institutes.     The  language   of  the 
Roman  law,  according  to  the  passage  cited  in  the  case,  confirBis 
the  same  doctrine.     *     *     *     It  appears  to  me  that  that  passage 
(and  there  are  others  to  the  same  effect  in  the  Digest)  confirms 
the  opinion  laid  down  by  Erskine  in  his  Institutes,  with  respect 
to  the  law  of  Scotland,  in  confifmation  of  which  lie  refers  to  the 
Roman  law.     It  is  true  that  passages  may  be  found  in  the  Digest, 
appearing  to  have  a  contrary  tendency,  but  I  think  they  may  be 
all  reconciled;  or,  consider  the  subject  in  this  light,  that   these 
passages  to  which  I  am  now  alluding  have  reference  to  accidental 
and  extraordinaiy  casualties,  from    the  flood  suddenly  bursting 
forth,  and  they  go  to  this,  that  in  such  a  ease  the  parties  may, 
even  to  the  prejudice   of  their  neighbors,  for  the  sake  of  self-pre- 
servation, guard  themselves  against  the  consequence ;  perhaps  in 
this  way,  the  difi'erent  passages  in  the  Digest  may  be  reconciled  " 
{I^ex  V.  Traford,  1  Barn,  cfe  Ad.  7?.,  87-1).     But  it  is  not  impor- 
tant to  the  objects  of  this  discussion  that  the  subject  be  further 
pursued  in  this  place.     The  subject,  to  the  extent  to  which  it  has 
been  considered  here,    has   a   close   relation  to    the   question    of 
boundary,  but  the  further  consideration  of  it  may  not  be  required. 
In  England  the  preservation  of  walls  and  embankments  by  the 


102  i^TF   OF  BOUNDARIES. 

sea-sliore  and  navigable  rivers,  and  tlie  removal  of  obstructions  in 
public  rivers,  devolve,  for  tlie  most  part,  on  the  commissioners  of 
sewers,  whose  duties  and  liabilities  are  determined  bj  certain  acts 
of  Parliament  called  statutes  of  sewers.  In  this  country  the  mat- 
ter is  in  the  hands  of  Congress  and  the  State  Legislatures,  and 
provision  is  made  by  legislative  enactment.  But  an  individual, 
corporation  or  locality  may  be  liable  to  repair  a  sea-wall  by  pre- 
scription or  custom.  Therefore,  where  the  owners  of  the  estate, 
which  a  man  has,  have  time  out  of  mind  repaired  the  wall,  he 
will  be  bound.  And  where  there  is  a  custom  in  the  locality  that 
all  those  whose  lands  abut  upon  the  sea  shall  do  the  repairs  (which 
is  called  the  custom  of  frontages),  those  who  have  lands  fronting 
the  sea  will  be  liable  {Carlis  on  Seioers,  115,  116;  Glhhon  on 
Dilapidations,  348,  349).  A  person  may,  likewise,  be  bound  by 
reason  of  a  condition  annexed  to  his  estate  ;  or  by  covenant,  which 
will  bind  his  heirs,  if  expressly  mentioned,  but  only  to  the  extent 
to  which  they  have  assets  by  descent  {Henley  v.  Mayor  of  Lyme, 
5  Bing.  B.,  91 ;  S.  C,  3  Barn.  &  Ad.  B.,  77).  And  it  has  been 
held  that  a  public  company,  exercising  statutory  powers  for  its 
own  profit,  may  be  obliged  to  repair  sea-walls,  to  clear  away 
obstructions  to  navigation,  and  the  like  {Barnaby  v.  Lancaster 
Canal  Company.,  11  Adolpfms  <&  Ellis  B.,  223 ;  Majiley  v.  ^S"^. 
Llelen^s  Company,  27  L.  J.,  ExcJi.  B.,  159).  A  purchaser  of 
lands  situated  below  the  level  of  the  sea  is  bound  to  inquire  how 
all  the  defenses,  necessary  for  the  protection  of  the  property 
against  the  encroachments  of  the  sea,  are  maintained,  and  if  the 
vendor  lias  entered  into  covenants  respecting  the  sea-walls  and 
sewers  the  purchaser  will  be  bound.  It  would  seem,  however, 
that  a  covenant  to  repair  a  sea-wall  would  run  with  the  land, 
and  would,  therefore,  bind  a  purchaser,  even  without  notice, 
express  or  implied  {Moreland  v.  Baker,  6  L.  B.,  Eg.,  252). 


LANDS  ON  ROADS  AND  STREETS.  103 


CHAPTER  IX. 

rilE     LAW     RELATING    TO     BOUNDARY     OF     LANDS     UPON     ROADS     AND 

STREETS RULE    IN    RESPECT    TO    PUBLIC   AND   PRIVATE    WAYS    TUB 

SAME PRESUMPTIONS  AS  TO  WASTE  LANDS  ADJOINING  HIGHWAYS  — 

LAW    OF    BOUNDARY    IN    RESPECT    TO   DITCHES    AND    WALLS. 

Where  a  road  divides  two  estates,  whether  freehold,  copyhold 
or  leaseliold,  the  presumption  is  that  tlie  soil  of  the  road,  witli 
the  minerals  under  it,  usque  ad  medium  filiun  vice^  and  the  waste 
lands  and  trees  by  the  sides  thei-eof,  belong  to  the  adjoinino^  own- 
ers. This  has  been  the  rule,  as  recognized  by  the  English  coui-ts, 
time  out  of  memory ;  and  the  same  rule  is  universally  adopted  in 
this  country.  A  person  holding  lands  bounded  upon  the  high- 
way is  \\e\di  prima  facie  to  own  to  the  center  of  the  road.  This 
presumption  is  allowed  to  prevail  upon  grounds  of  public  conve- 
nience, and  to  prevent  disputes  as  to  the  precise  boundaries  of 
property ;  and  it  is  based  on  the  supposition  that  when  the  road 
was  originally  formed  the  proprietors  on  either  side  each  contri- 
buted a  portion  of  his  land  for  the  purpose  {Holmes  v.  Belling- 
ham,  7  J.  Scott's  i?.,  N.  S. ,  329,  336).  And  this  supposition, 
that  the  proprietors  on  either  side  of  a  highway  contributed  a 
portion  of  his  land  for  the  road  when  it  was  formed,  is  based  upon 
the  doctrine  that  there  is  no  presumption  that  a  highway  was 
made  before  the  time  of  legal  memory,  so  as  to  vest  the  soil  of  it 
in  the  lord  of  the  manor;  so  declared  in  several  leading  English 
cases  (  Vide  Doe  v.  Pearsey,  7  Barn.  &  Cres.  B.,  304 ;  Cooke  v. 
Green,  11  Price'' s  i?.,  736 ;  Scoones  v.  Morrell,  1  BeavaiUs  i?., 
251).  Upon  this  ground,  a  conveyance  of  land  described  as  abut- 
ting on  a  road  passes  a  moiety  of  the  soil  of  the  road  to  the 
grantee,  unless  there  be  something  in  the  context  to  exclude  this 
construction.  Sir  J.  Coleridge  remarked,  in  a  case  before  the 
House  of  Lords,  in  which  the  boundary  of  lands  upon  a  creek  was 
involved  :  "  If  lands  granted  were  described  as  bounded  by  a  house, 
no  one  could  suppose  the  house  was  included  in  the  grant ;  but  if 
land  granted  were  described  as  bounded  by  a  highway,  it  would  be 
equally  absurd  to  supj)ose  the  grantor  had  reserved  to  himself  the 
right  to  the  soil  ad  medium  filum,  in  the  far  greater  majority 
of  cases  wholly  unprofitable "  {Lord  v.  The   Cotnmlss'ioners  foi 


104  LAW  OF  BOUNDARIES. 

the  City  of  Sidney,  12  Moore's  P.  C,  473).  And  in  a  leading 
case  before  the  English  Court  of  Common  Pleas,  the  land  was 
described  as  "  bounded  by  Hall  lane,"  and  it  was  held  that  the 
grantee  w^as  vested  with  the  soil  of  Hall  lane  nsqrte  ad  filum 
vice;  or  in  other  words  that  a  moiety  of  the  land  in  Hall  lane 
passed  by  the  conveyance,  though  it  w\is  not  necessary  to  include 
any  portion  of  the  lane  to  make  up  the  quantity  of  land  specified 
in  the  grant  {Simpson  v.  Dendy,  8  Eng.  C.  B.  E.,  iT.  S.,  433). 
And  in  a  late  case  before  the  same  learned  court,  after  the  examin- 
ation of  many  authorities,  the  doctrine  was  fully  recognized,  and 
it  was  held  that,  where  a  piece  of  land  which  adjoins  a  highway 
is  conveyed  by  general  words,  the  presumption  of  law  is,  that  the 
soil  of  the  highway  usque  ad  medium  filum  passes  by  the  con- 
veyance, even  thongh  reference  is  made  in  the  conveyance  to  a 
plan  annexed,  the  measurement  and  coloring  of  which  would 
exclude  it.  The  counsel  for  the  advei-se  party  expressly  admitted 
the  general  doctrine,  but  contended  that  the  language  of  the  con- 
veyance excluded  the  highway,  because  that  which  was  intended 
to  be  conveyed  was  precisely  defined.  But  the  court  held,  that 
admeasurements,  accompanied  by  a  reference  to  a  colored  plan  in 
Avhich  no  part  of  the  road  was  included,  were  not  sufficient  to 
rebut  the  presumption  that  a  moiety  of  the  road  was  intended  to 
be  conveyed  {Berridge  v.  Ward,  10  Eng.  C.  B.  R.,  N.  S.,  400 ; 
and  vide  The  Queen  v.  Strand  District  Board  of  Works,  4  Best 
c&  Smith's  E.,  548,  553). 

The  same  doctrine  with  respect  to  the  conveyance  of  lands 
bounded  upon  a  road  has  been  repeatedly  recognized  by  the  Amer- 
ican courts.  In  a  late  case  decided  by  the  New  York  Court  of 
Appeals,  it  was  declared  that  a  deed  bounded  on  a  highway  j^W??? a 
facie  carries  the  title  of  the  grantee  to  the  center  of  the  road,  on 
the  assumption  that  the  grantor  owns  it ;  but,  as  was  remarked  by 
Porter,  J,,  who  delivered  the  opinion  of  the  court:  "The  j^re- 
sumption  in  fovor  of  an  adjacent  proprietor,  and  of  his  successors 
in  interest,  is  not  a  prcsumptio  juris  et  dejure.,  but  yields  to  other 
evidence  displacing  the  grounds  upon  which  it  rests."  And  the 
learned  judge  continued  :  "The  effect,  in  tliis  respect,  of  a  given 
deed,  depends  on  the  actual  state  of  the  title.  A  conveyance, 
bounded  on  a  village  street,  would  ordinarily  include  the  soil  to 
the  center;  but  it  would  be  otherwise  M'ith  a  like  conveyance 
bounded  on  one  of  the  streets  in  the  upper  part  of  tlie  city  of 


LANDS   OX  ROADS  AND   STREETS.  IQj 

Kew  York,  where  the  right  of  soil  is  vested  in  the  public  authori- 
ties. So,  the  same  language  in  a  deed  of  lands  bounded  on  a 
river,  which  would  embrace  half  the  bed  of  a  stream  not  naviga- 
ble, would  carry  the  title,  in  a  different  case,  only  to  the  line  of 
low- water  mark.  In  the  present  instance,  tlie  presumption  in 
favor  of  the  adjacent  owners  was  repelled  by  affirmative  and 
decisive  proof  that  the  fee  of  the  road-bed  was  not  vested  in  them 
or  in  the  parties  through  whom  their  title  was  derived."  The 
doctrine  of  the  precise  case  was  held  to  be,  that  where  the  land 
covered  by  the  road-bed  belonged  to  the  government,  and  not  to 
the  owners  of  adjacent  lands,  as  in  the  case  of  the  ancient  road 
from  Flatbush  to  Brooklyn,  a  deed  bounding  lands  upon  such 
highway  carries  title  only  to  the  road-side.  So,  notwithstanding 
the  general  rule,  if  it  appear  that  the  soil  of  the  road  was  not 
owned  by  the  grantor,  the  terms  of  a  deed  bounding  upon  the 
highway  are  satisfied  by  a  title  extending  only  to  the  road-side 
{Dunham  v.  Williams,  37  ]Sf.  Y.  R.,  251,  252). 

The  present  Supreme  Court  of  the  State  of  New  York,  some 
years  since,  held  that  M'here  the  owner  of  real  estate  in  a  villaire 
lays  out  a  street  through  the  same,  and  divides  the  land  on  each 
side  of  it  into  village  lots,  which  he  sells  to  individuals  in  fee,  • 
counnencing  his  boundary  at  a  stake  in  the  line  of  the  highway, 
but  not  including  the  highway  by  express  terms,  the  respective 
grantees  take  to  the  center  of  the  highway' ;  and  the  doctrine  was 
expressly  declared  that  the  grantee  of  a  lot  bounded  on  a  street 
prima  facie  takes  to  the  center  of  the  street ;  and  to  prevent  the 
grant  having  this  effect,  it  was  said  that  there  must  be  language 
expressly  excluding  the  street.  It  w^as  further  declared  that,  in 
the  city  of  New  York,  the  legal  title  to  the  soil  of  the  streets  is 
vested  in  the  corporation  ;  but  that  in  other  parts  of  the  State  the 
legal  presumption  is  that  the  fee  is  in  the  owner  of  the  adjoining 
lots.  And  it  was  observed  by  Judge  Willard,  who  delivered  the 
opinion  of  the  court,  that  this  presumption  in  respect  to  the  fee 
of  the  land  of  the  roads  and  streets  of  the  towns  and  cities  of  the 
State,  excepting  the  city  of  New  York,  had  always  been  the  law 
as  understood  and  expounded  by  the  courts  of  the  State ;  and  the 
learned  judge  referred  to  a  large  number  of  authorities  in  which 
the  legal  presumption  was  held  to  obtain  in  accordance  with  his 
statement.  It  was  thought  by  the  court  that  the  boundary  of 
land  upoli  a  highway  stands  upon  the  same  footing  at  common 
14 


J[Q6  "  LAW  OF  BOUNDARIES. 

law  as  a  boundary  upon  a  stream  above  tide-water,  in  which  latter 
case  the  old  Supreme  Court  of  the  State  had  held  that,  where  the 
grant  is  so  framed  as  to  touch  the  water  of  the  stream,  and  the 
parties  do  not  expressly  except  the  stream,  one-half  of  the  bed  of 
the  stream  is  included  by  construction  of  law,  with  the  declara- 
tion that  if  the  parties  mean  to  exclude  it,  they  should  do  so  by 
express  exception  {Luce  v.  Carley,  24:  Wend.  R.,  451,  453).  This 
doctrine  Judge  Willard  indorsed,  and  said  that  no  case  in  this 
State,  holding  a  contrary  doctrine,  had  been  brought  to  the  notice 
of  the  court  {Adams  v.  Saratoga  and  Washington  Railroad 
Compamj,  11  Barh.  R.,  414).  The  Court  of  Appeals  of  the  State 
reversed  the  judgment  of  the  Supreme  Court  in  this  case,  and 
ordered  a  new  trial,  on  the  ground  that  certain  evidence  offered 
on  the  part  of  the  defendants,  which  was  excluded  at  the  circuit, 
should  have  been  received.  It  is  understood  that  the  reversal 
does  not  affect  the  authority  of  the  case  upon  the  points  herein 
stated  ( Vide  Adams  v.  Saratoga  and  Washington  Railroad 
Company,  10  N.  Y.  R.,  328 ;  and  vide  Adams  v.  Rivers,  11 
Barh.  R.,  390). 

The  same  question  came  before  the  present  Supreme  Court  of  the 
State  of  Kew  York,  at  a  Special  Term,  in  November,  1860 ;  and 
it  was  decided,  after  full  argument  by  very  able  connsel,  that 
where  premises,  conveyed  by  deed,  are  bounded,  in  general  terms, 
by  a  street,  the  grant  extends  to  the  middle  of  the  street ;  and  this, 
whether  the  land  be  situated  in  the  country  or  in  a  city.  Hoge- 
boom,  J.,  who  held  the  court,  remarked  that  such  was  conceded 
to  be  the  rule  as  to  land  in  the  country,  and  he  thought  it  equally 
applied  to  urban  territory.  The  learned  judge  said  :  "  The  reason 
is  substantially  the  same,  as  applied  to  a  road  in  the  country  or  a 
street  in  the  city  ;  that  is,  the  intervening  strip  was  originally 
taken,  or  supposed  so  to  be,  for  public  purposes,  from  the  owners 
on  opposite  sides  of  the  street  or  highway ;  taken  only  for  public 
purposes,  and  only  so  much  of  it,  both  in  regard  to  the  quality 
and  duration  of  the  estate,  as  was  supposed  to  be  required  for  the 
public  use,  and  is  to  be  returned  to  the  respective  proprietors 
when  the  public  have  no  further  use  for  it ;  or  else  it  was  founded 
upon  principles  of  public  policy,  based  upon  the  supposed  incon- 
veniences or  impropriety  of  having  so  long  and  nai-row  a  strip  of 
land  or  body  of  water  the  subject  of  a  distinct  and  separate  owner- 
ship from  that  of  the  adjoining  territory  on   either  side"  {The 


LANDS   ON  ROADS  AND   STREETS.  ]  07 

Peojple  V.  Law^  34  Bar!),  i?.,  494,  501).  This  case,  altlioiigli  a 
Special  Term  decision,  was  referred  to,  with  approval,  in  a  late 
case  decided  by  the  Court  of  Appeals  of  the  State,  in  which  it 
was  held,  in  respect  to  a  quadrangular  lot  of  land  on  the  soutli-east 
corner  of  Bleecker  and  Grove  streets,  in  tlie  city  of  New  York, 
that,  where  the  description  in  a  deed  defines  the  boundai-y  of  the 
premises  along  the  line  of  a  given  street,  title  vests  in  the  grantee 
to  the  middle  of  the  street,  subject,  of  course,  to  the  public  use  of 
the  same  as  a  highway ;  recognizing  the  rule  that,  where  land  is 
bounded  on  a  street,  this  includes  the  land  to  the  middle  of  the 
street,  unless  there  is  evidence  on  the  part  of  the  grantor  to 
exclude  the  street  from  the  grant  {Sherman  v.  McKeon,  38  N'.  Y. 
B.,  266).  But  the  same  court  had  previously  held  that,  by  force  of 
the  statute  of  1S13,  the  corporation  of  the  city  of  New  York 
became  seised  in  fee  of  the  land  embraced  within  the  streets; 
although  not  absolutely  as  private  or  corporate  property,  but  in 
trust  for  public  use  {The  People  v.  Kerr,  27  N.  Y.  II.,  188). 
The  fee  of  the  land  occupied  by  the  streets  of  the  city  of  New 
York  being  in  the  corporation,  and  not  in  the  adjoining  owners, 
of  course  a  deed  bounding  lands  upon  one  of  the  streets  of  that 
city  would  not  carry  title  farther  than  the  margin  of  the  street. 
But  the  Court  of  Appeals  have  held  that,  as  between  grantor  and 
grantee,  the  conveyance  of  a  lot  bounded  upon  a  street  in  a  city 
carries  the  land  to  the  center  of  the  street.  There  is  no  distinc- 
tion, it  was  said,  in  this  respect,  between  the  streets  of  a  city  and 
country  highways  {Bissell  v.  The  New  Yorh  Central  Railroad 
Comjpany,  23  N.  Y.  B.,  61).  This  is  the  rule  of  construction 
applied  to  conveyances  of  land  bounded  upon  the  streets  of  all  the 
cities,  with  the  exception  of  a  portion  of  the  streets,  at  least,  in 
the  city  of  New  York.  Doubtless  the  inference  of  law  upon  this 
subject,  in  respect  to  the  streets  of  the  city  of  New  York,  would 
be  different  from  that  which  obtains  in  other  cities.  The  general 
doctrine,  however,  that  lands  bounded  by  the  highway  extend  to 
the  center  of  the  road,  or,  in  other  words,  that  the  proprietor  of 
lands  adjacent  to  a  highway  is  prima  facie  owner  of  the  soil  to 
the  center  of  the  road,  has  been  repeatedly  recognized  and  applied 
by  the  courts  of  the  State  of  New  York ;  and  the  rule  is  founded 
upon  the  rational  presumption  that  the  ground  was  originally 
taken  from  the  adjoining  owners,  and  for  the  sole  purpose  of 
being  used  as  a  thorous'hfare. 


108  LAW   OF  BOUSDARIES. 

The  adjudged  cases  in  tlie  neighboring  States  upon  this  subject 
are,  for  tlie  most  part,  in  harmony  with  tliose  of  the  State  of  New 
York.  At  a  very  early  day  the  courts  of  Connecticut  held  that 
the  proprietors  of  land  bounded  on  a  highway  have,  lyrima  facie, 
at  least,  a  fee  in  such  highway,  ad  medium  filuin  vice,  subject  to 
the  easement  {Peck  v.  Smith,  1  Conn.  B.,  103 ;  Chatham  v. 
Brainard,  11  ih.,  GO).  In  the  latter  case  the  description  in  the 
deed  brought  the  grantee  to  the  highway,  and  it  was  held  that  he 
took  to  the  center  of  the  highway,  although  the  highway  was  not 
mentioned  as  a  boundary.  The  land  conveyed  was  described  as 
bounded  ec/6?!  on  Xvi'^^ws^:^  or  common  land ;  and  it  appeared  that 
there  was  a  highway  there,  and  the  court  held  that  the  words  "  or 
common  land"  did  not  vary  the  construction;  and  in  a  later  case 
the  same  court  held  that,  where  it  is  the  intention  of  parties  to 
convey  land  adjoining  a  highway  so  as  to  exclude  the  highway, 
such  intention  must  appear  in  clear  and  explicit  terms ;  otherwise 
the  fee  passes  to  the  center  of  the  highway.  Where  it  appeared 
that  the  south  line  of  the  land  conveyed  was  the  same  as  the  north 
line  of  the  highway,  although  the  highway  was  not  mentioned  or 
referred  to  in  the  deed,  the  court  held  that  the  fee  passed  to  the 
center  of  the  highway  {Champlin  v.  Pendleton,  13  Conn.  P.,  23). 

In  the  State  of  Maine,  the  Supreme  Court  has  expressly  held 
that  a  boundary  on  the  highway  will  carry  the  grantee  to  the 
center  of  the  road.  In  one  case,  commissioners,  under  the  direc- 
tion of  the  Court  of  Probate,  divided  the  real  estate  of  a  deceased 
between  his  heirs,  each  parcel  of  which  they  particularly  described. 
The  lands  contiguous  to  the  county  road  were  represented  as 
bounded  by  it,  and  the  court  held  that  the  fee  of  the  road,  subject 
to  the  public  easement,  w^as  thereby  divided ;  those  owning  the 
lots  contiguous  to  it  and  opposite  sides  going  to  the  center  of  tlie 
road  {Bucknam  v.  Bucknam,  3  Fairf.  P.,  463).  And  in  a  later 
case  the  same  court  held,  in  general  terms,  that  a  grant  of  land 
bounded  on  a  highway  carries  the  fee  in  the  highway  to  the 
center  of  it,  if  the  grantor  at  the  time  owned  to  the  center,  and 
there  are  no  words  showing  a  contrary  intent  {Jackson  v.  Ander- 
son, 18  Maine  P.,  76). 

The  Supreme  Judicial  Court  of  Massachusetts,  at  an  early  day, 
held  that  land  bounded  by  a  river  extends  to  the  thread  of  the 
stream  ;  but  with  respect  to  the  boundary  of  a  deed  upon  a  road, 
a  different  rule  was  adopted  {Sweet  v.  Holland,  ll  Mass.  P.,  149 ; 


LANDS   ON  ROADS  AND   STREETS.  109 

and  vide  Silley  v.  Ilowen,  10  Pich.  Ji.,  249  ;  T>/Ier  v.  Hammond, 
11  ih.,  193 ;  Van  Olinda  v.  Lathrop,  21  ih.,  292).  In  the  last 
mentioned  case  Morton,  J.,  concedes  tliat  there  is  a  great  analogy 
between  a  boundary  upon  a  river  (which  he  admits  goes  to  the 
center  or  thread  of  the  stream)  and  upon  a  highway ;  and  yet  he 
says  that  the  cases  in  that  State  did  not,  in  the  latter  case,  carry 
the  boundary  to  the  center  of  the  road.  These  cases  are  believed 
to  be  opposed  to  the  current  of  authorities  in  New  England.  And, 
indeed,  the  Supreme  Judicial  Court  of  Massachusetts,  in  all  the 
later  cases,  has  recognized  the  general  doctrine  that  the  owner  of 
land  adjoining  a  highway  is  presumed  to  own  to  the  center 
thereof;  and  that  such  is  the  presumption  where  a  deed  bounds 
die  estate  by  or  on  a  public  way,  unless  a  contrary  intent  appears 
on  the  face  of  the  instrument.  In  accordance  with  this  rule,  the 
court  held,  in  a  recent  case,  where  a  record  in  the  original  Book 
of  Possessions  of  the  town  of  Boston,  which  book  appears  to  have 
been  made  between  1639  and  1G45,  of  a  possession  of  a  house  and 
lot  "bounded  with  the  street,"  that  such  record  shows  title  in  the 
possessor  to  the  center  of  the  street,  even  if  the  possession  M-as 
granted  by  the  General  Court  or  town  after  the  street  had  been 
laid  out.  Gray,  J.,  delivered  the  opinion  of  the  court,  and  said: 
"In  some  opinions  of  this  court  it  has,  indeed,  been  implied  or 
asserted  that  a  boundary  upon  a  road  or  street  passed  no  title  in 
the  land  under  it.  But  in  the  more  recent  decisions  the  general 
rule  has  been  repeatedly  declared,  and  must  now  be  regarded  as 
the  settled  law  of  this  commonwealth,  overruling  whatever  is 
irreconcilable  in  the  earlier  cases,  that  a  deed  bounding  land  gene- 
rally by  a  highway,  with  no  restriction  or  controlling  words,  con- 
veys the  grantor's  title  in  the  land  to  the  middle  of  the  highway 
{Newhall  V.  Ireson,  8  Cash.,  598 ;  ridlUps  v.  Bowers,  7  Gray, 
24-26;  Fislierv.  Smith,  9  Gray,  444;  Ilollenbeck  v.  Rowley,  8 
Allen,  473).  And  in  Bice  v.  Worcester  (1 1  Gray,  283,  note)  it 
was  held  that  the  title  of  the  owner  of  land  abutting  on  a  high- 
way must  be  presumed  to  extend  to  the  center  of  the  highway, 
although  the  way  was  so  ancient  that  its  origin  was  unknown. 
These  decisions  are  in  accordance  wjtli  the  law  as  established  in 
other  States  and  in  Great  Britain.  *  *  *  The  question 
whether  any  grant  extends  to  the  side  line  or  the  center  line  of 
the  highway  is,  doubtless,  according  to  the  statement  made  by 
Chief  Justice  Shaw,  in  Wtbher  v.  Eastern  Bailroad  (2  Met,  151), 


110  LAW  OF  BOUNDABIES. 

and  approved  by  the  court  in  Codman  v.  Evans  (1  Allen,  44:(J), 
'  a  question  of  construction  in  each  particular  case,  and  depends, 
as  in  all  other  cases,  upon  the  intent  of  the  parties,  as  expressed 
in  the  descriptive  parts  of  the  deed,  explained  and  illustrated  by 
all  the  otlier  parts  of  the  conveyance,  and  by  the  localities  and 
subject-matter  to  which  it  applies.'  The  owner  of  land  by  the 
side  of  the  hii^hway,  and  under  it  to  the  center  thereof,  may,  of 
course,  by  using  apt  words,  limit  his  grant  to  the  edge  of  the  higli 
way,  and  retain  his  title  in  the  fee  of  the  soil  over  which  the 
higliway  runs.  *  *  *  Bnt  in  the  absence  of  words  clearly 
manifesting  an  intent  so  to  do,  tlie  law  presumes  that  he  did  not 
intend  to  reserve  the  title  in  a  strip  of  land  not  capable  of  any 
substantial  or  beneficial  use  by  him,  after  having  parted  with  the 
land  by  tlie  side  of  it,  while  the  highway  remains,  nor,  ordinarily, 
of  any  considerable  value  to  him  if  the  way  should  be  discon- 
tinued, and  the  ownership  of  which  by  him  might  greatly  embar- 
i-ass  the  use  or  disposal,  by  his  grantee,  of  the  lot  granted"  {City 
of  Boston  V.  Richardson,  13  Allen'' s  R.,  146,  152,  153).  And  in 
a  very  recent  case,  before  the  Supreme  Judicial  Court  of  Massa- 
chusetts, the  general  doctrine  was  again  confirmed.  It  appeared 
that  A.  conveyed  to  W.  a  lot  of  land,  "  situate  on  the  northerly 
side"  of  a  certain  street,  and  "bounded  and  described  as  follows: 
Beginning  at  a  point  on  the  line  of  land  of  B. ;  thence  by  said 
street  north,  fifty-eight  and  three-quarters  degrees  west,  about  one 
hundred  feet,  to  a  stake  and  stones  at  the  corner  of  land  of  G. ; 
thence  north,  thirty-one  and  a  quarter  degrees  east,  to  the  river; 
thence  by  said  B.'s  land  to  the  first  mentioned  bound."  The 
court  held  that  the  fee  of  the  land  to  the  center  of  the  street 
passed  to  W.,  it  appearing  that  A.  was  seised  thereof  at  the  time 
of  this  conveyance  {}Wtite  v.  Godfrey,  97  Mass.  R.,  472).  And 
in  one  of  the  cases  before  the  same  court,  hereinbefore  referred 
to,  it  was  held  that  the  title  of  the  owner  of  land  abutting  on  a 
higliway  must  be  presumed  to  extend  to  the  center  of  the  high- 
way, although  the  way  was  so  ancient  that  its  origin  was  unknown 
{Rice  v.  Worcester,  11  Grafs  R.,  283  ;  and  vide  Marsh  v.  Burt, 
34  Vt.  R.,  289).  The  Supreme  Court  of  the  United  States  have 
expressly  recognized  the  general  doctrine  upon  the  subject,  and 
especially  in  a  case  decided  in  December,  1864,  in  which  Chief 
Justice  Chase,  who  delivered  the  opinion,  said  :  "  It  is  a  familiar 
principle  of  that  law"  (the  law  aj)plicablc  to  dedications)  "that  a 


LANDS   OX  FOADS  AXD   STREETS.  'Ill 

grant  of  land,  bordering  on  a  road  or  river,  carries  tlie  title  to  tlio 
center  of  the  river  or  road,  unless  the  terms  or  circumstances  of 
the  grant  indicate  a  limitation  of  its  extent  by  the  exterior  lines" 
{Banl's  V.  Ogdeti,  2  Wall.  12.,  57,  68).  In  respect  to  the  doctrine 
which  is  applied  to  lands  bounded  upon  roads,  and  to  analogous 
cases,  Chancellor  Kent  says  :  "  It  may  be  considered  as  the  gene- 
ral rule  that  a  grant  of  land  bounded  upon  a  higlnvay  or  river 
carries  the  fee  in  the  higlnvay  or  river  to  the  center  of  it,  provided 
the  grantor,  at  the  time,  owned  to  the  center,  and  there  be  no 
words  or  specific  description  to  show  a  contrary  intent"  (^dKenfs 
Com.,  433,  434). 

It  should  be  said  that,  where  a  highway  passes  through  an 
inclosed  country,  not  the  formed  road  merely,  whether  of  pave- 
ment, gravel  or  other  material,  but  the  whole  space  from  fence  to 
fence  is  the  highway ;  and  where  a  highway  passes  over  a  com- 
mon, it  frequently  extends  considerably  to  the  right  and  left  of 
what  may  be  the  ordinary  passage  ;  but  the  fences  themselves  are 
not  comprehended  in  the  legal  acceptation  of  a  highway.  These 
principles  have  been  settled  by  the  courts  in  England  ( Vide 
Ehoood  V.  Bxdlock,  6  Queen'' s  Bench  R.,  383,  409 ;  Ilex  v.  WrigJd, 
3  Barn.  &  Ad.  li.,  %^\',  Regina  v.  United  Kingdom  Telegraph 
Company,  L.  J.,  M.  C.  166  ;  S.  C,  3  Fos.  <&  Fin.  R.,  73).  But  the 
width  of  the  road  depends  upon  the  provisions  of  the  statute 
under  which  it  was  laid  out,  unless  the  same  has  become  a  public 
highway  by  dedication  and  use.  For  example,  by  the  statutes  of 
New  York,  public  roads  are  required  to  be  not  less  than  three 
rods  in  width,  and  the  presumption,  doubtless,  would  therefore  be, 
that  the  road  was  of  the  width  prescribed  by  law.  If  it  should 
be  claimed  that  the  road  was  of  a  different  width,  by  prescription 
or  otherwise,  it  would  lay  upon  the  party  who  set  up  the  claim  to 
prove  it  ( Vide  Cleveland  v.  Cleveland,  12  Wend.  R.,  172).  When 
the  road  has  become  a  public  highway  by  being  laid  out  and 
opened  by  the  public  authorities,  the  width  and  location  of  the 
same  depend  upon  the  provisions  of  the  order  laying  it  out.  But 
wdiere  it  becomes  so  by  dedication  and  user,  the  location  and 
width  of  it  depend  upon  the  fact  of  travel  and  actual  use.  The 
right  acquired  by  the  public  where  land  is  appropriated,  by  dedi- 
cation, to  the  purpose  of  a  highway,  is  the  same  as  where  the  road 
is  made  a  public  highwa}'  b}'  action  of  the  public  authorities.  In 
either  case,  the  public  acquires  only  the  right  of  way,  which  is  a 


112  LAW  OF  BOUNDARIES. 

mere  easement.  The  fee  remains  in  those  who  made  the  dedica- 
tion, and  the  rule  of  boundary  upon  one  is  the  same  as  the  other 
{Knox  V.  The  Mayor^  etc.,  of  New  York,  55  Barl.  R.,  404;  S. 
a,  38  Hoio.  Pr.  R.,  67). 

The  same  principles  which  apply  to  boundaries  on  a  public  road 
apply  also  to  those  on  a  private  road.  That  is  to  say,  the  pre- 
sumption that  the  soil  of  a  road  usque  ad  medium,  Jilum  vice 
belonc^s  to  the  owners  of  the  adjoining  lands,  applies  equally  to  a 
private  as  to  a  public  road.  Said  Williams,  J.,  in  a  late  case 
before  the  English  Court  of  Common  Pleas  :  "  Now,  as  to  the 
proposition  that  the  presumption  which  is  established  in  the  case 
of  a  public  road  prevails  also  in  the  case  of  a  private  roaa,  I 
think  that  is  not  inaccurate,  provided  the  proposition  is  confined 
to  the  simple  case  of  a  private  road  bare  of  all  other  circumstances. 
If  nothing  else  appears  than  the  existence  of  a  private  way  run- 
ning between  the  lands  of  two  adjoining  proprietors,  I  do  not 
quarrel  with  the  proposition  ;  for,  there  being  nothing  else  to 
guide  them  to  a  conclusion,  I  think  the  jury  may  very  well  pre- 
sume that  the  soil  of  the  road  belongs  half  to  the  one  and  half  to 
the  other.  That,  like  all  other  presumptions,  may  be  rebutted  by 
evidence  of  acts  of  ownership,"  The  learned  judge  who  tried  the 
cause  at  nisi  jpriiis  told  the  jury  that  there  was  a  presumption, 
in  the  case  of  a  private  way  or  occupation  road  between  two  pro- 
prietors, that  the  soil  of  the  road  belongs  usque  ad  ■mediuin  Jilum 
vice  to  the  owners  of  the  adjoining  property  on  either  side.  In 
respect  to  this  instruction,  Cockburn,  Ch.  J.,  abserved :  "  That 
proposition,  subject  to  the  qualitication  which  I  shall  presently 
mention,  and  which,  I  take  it,  was  necessarily  involved  in  what 
afterward  fell  fi-oni  the  learned  judge,  is  in  my  opinion  a  correct 
one.  The  same  principle  which  applies  in  the  case  of  a  public 
road,  and  which  is  the  foundation  of  the  doctrine,  seems  to  me  to 
apply  with  equal  force  to  the  case  of  a  private  road.  That  pre- 
sumption is  allowed  to  prevail  upon  grounds  of  public  conveni' 
ence,  and  to  prevent  disputes  as  to  the  precise  boundaries  of  pro- 
perty ;  and  it  is  based  upon  this  supposition, — which  may  be  more 
or  less  founded  in  fact,  but  which  at  all  events  has  been  adopted,— 
that,  wlien  the  road  was  originally  formed,  the  proprietor  on 
either  side  each  contributed  a  portion  of  his  land  for  the  purpose. 
I  think  that  is  an  equally  convenient  and  reasonable  princi[)le, 
whether  applied  to  a  public  or  to  a  pi-ivate  road  ;  but.  in  the  latter 


LANDS    ON  ROADS   AND    STREETS.  113 

case,  it  must  of  course  be  taken  with  tliis  qualification,  that  the 
user  of  it  has  been  qua  road  and  not  in  the  exercise  of  a  claim  of 
ownership."  Crowder,  J.,  also  gave  an  opinion  concurring  in  the 
proposition  of  law,  that  the  rule  as  to  the  soil  being  presump- 
tively vested  in  the  respective  owners  of  tlie  adjoining  Islm^^  usque 
ad  medium  filum  vice,  was  the  same  in  tlie  case  of  a  private  road 
as  in  that  of  a  public  road  {llol/nes  v.  Bellinghctm,  7  Com.  Bench 
B.,  JSr.  S.,  328,  336-339 ;  S.  C,  97  JS'nrj.  0.  L.  R.,  327,  335-338). 
And  in  a  subsequent  case  the  same  court  held  that  the  mere  fact 
that  a  private  road  leads  to  the  lands  of  one  only  of  two  adjoining 
proprietors  will  not  be  sufficient  to  rebut  tlie  presumption  of  law 
that  each  proprietor  owns  the  soil  to  the  center  of  the  road,  for  it 
is  2)ei"  se  no  evidence  of  the  soil  of  the  road  being  vested  in  the 
proprietor  to  whose  land  it  leads  {Smith  v.  Ilowden,  14  Coin. 
Bench  R.,  N.  S.,  398). 

The  same  doctrine  is  generally  held  to  obtain  by  the  American! 
courts.  The  Supreme  Judicial  Court  of  Massachusetts  in  one 
case  held  that  a  deed  of  land  "  bounded  on  "  a  private  way  lead- 
ing  over  other  land  of  the  grantor  to  his  own  dwelling-house 
jDassed  the  fee  in  the  land  under  the  way  to  its  center.  The  court 
said :  "  The  rule  is  well  settled  in  this  commonwealth,  that  a  deed 
of  land  bounded  on  a  highway  laid  out  over  land  of  the  grantor 
passes  the  fee  to  the  center  of  the  way,  when  there  is  nothing  in 
the  deed  to  require  the  opposite  construction.  A  majority  of  the 
court  are  of  the  opinion  that  the  same  rule  extends  to  private  ways  " 
(Fisher  v.  Smith,  9  Gray's  R.,  iU,  44:4).  And  the  same  learned 
court  has  approved  the  principle  in  subsequent  cases  (Vide  Citij 
of  Boston  V.  Richardson,  13  Allen! s  R.,  146,  154 ;  Jamaica 
Pond  Aqueduct,  9  ih.,  159  ;  Winslow  v.  King,  14  Graifs  R.,  320). 
The  Supreme  Court  of  the  State  of  Maine,  however,  has  held  in 
one  case,  that  where  the  proprietor  of  land  grants  the  right  of  a 
private  way  across  it,  of  a  specified  direction  and  width,  and  after- 
ward conveys  the  land  on  one  side  of  such  way,  bounding  it  by 
the  line  of  the  way,  tlie  grantor  of  such  land  takes-  no  fee  in  any 
part  of  the  strip  of  land  covered  by  the  right  of  way,  and  further, 
that  by  virtue  of  his  deed,  the  grantee  takes  in  such  strip  no  ease- 
ment, or  right  of  way  by  necessity  {The  State  v.  Clements,  32; 
Maine  R.,  279).  But  this  is  contrary,  certainly,  to  the  English 
and  Massachusetts  decisions ;  and  the  better  opinion  is  that  the- 
presumption  that  the  owner  of  land  by  the  side  of  a  way  owns 
15 


J.  I  4  LAW    OF  BOUNDARIES. 

the  fee  to  the  middle,  should  be  applied  equally  to  public  and  pri- 
vate ways.  There  can  be  no  good  reason  why  the  rule  should  be 
ap[)lied  to  a  public,  and  not  to  a  private  way.  So  that  it  may  be 
athrmed  as  a  rule  of  law  that  the  presumption  in  all  cases  is,  that 
the  soil  of  a  public  or  private  way  belongs  in  equal  moieties  to 
the  owners  of  the  land  on  either  side.  It  is  a  rule  introduced  for 
convenience,  that  there  may  not  be  perpetual  disputes  about  triflee? 
and  it  is  as  pertinent  in  the  case  of  a  private  as  a  public  way. 

Where  waste  lands  adjoin  a  public  highway,  the  presumption 
of  law  is  that  such  waste  lands  and  the  soil  of  the  highway  itself 
ad  medium  filum  vice  belong  to  the  adjoining  owners  ;  but  so  far 
,as  waste  lands  are  concerned,  the  doctrine  is  of  comparatively  lit- 
tle importance  in  this  country,  and  in  England  the  rule  prevails 
only  between  the  lord  and  the  copyholders  and  tenants  of  a  manor, 
or  between  the  grantor  and  the  grantee  of  an  estate.  It  has  no 
application  to  the  case  of  persons  who  claim  under  the  same 
grantor.  And  where  the  lord  of  a  manor  had  conveyed  land  to 
A.  and  afterward  other  land  to  B.,  and  it  appeared  that  a  narrow 
strip  of  land  passed  by  one  or  other  of  the  conveyances,  but  it  was 
doubtful  by  which,  the  court  held  that  no  presumption  arose  in 
favor  of  A.,  from  the  fact  that  the  strip  of  ground  lay  between  a 
highway  and  land  wliich  was  indisputably  comprised  in  A.'s  con- 
veyance (  White  V.  Hill,  6  Queen's  Beiich  R.,  487 ;  and  vide  Mar- 
quis of  Salisbury  V.  Great  Northern  Railway  Company,  5  Com. 
Bench  R.,  N.  S.,  174). 

The  presumption  referred  to  may  be  rebutted  by  evidence  show- 
ing that  the  ownership  of  the  highway  and  waste  lands  is  in  the 
lord  of  the  manor,  or  some  other  proprietor.  Said,  Tindal,  Ch. 
J. :  "  The  point  to  be  ascertained  is,  whether  the  grantee  of  the 
lord  inclosed  to  the  edge  of  his  grant,  or  left  an  interval  between 
his  inclosure  and  the  boundary  line  of  his  property.  If  he  inclosed 
less  than  the  whole  extent  of  his  grant,  and  left  an  interval,  the 
spot  in  dispute  belongs  to  the  copyholder ;  if  he  inclosed  to  the 
extent  of  his  grant,  the  interval  in  question  belongs  to  the  lord. 
The  legal  presumption  is  in  favor  of  the  grantees  of  the  adjoining 
land,  and  where  the  lord  claims  the  interval,  he  is  obliged  to  show 
acts  of  ownership  in  support  of  his  claim"  {Doe  v.  Kemp,  7  Ring. 
R.,  335).  Acts  of  ownership,  exercised  not  only  over  the  spot  in 
dispute  but  over  other  parts  of  the  waste  lands  of  the  manor,  are 
a-eceiveable  in  evidence  in  support  of  the  lord's  rights,  if  the  parts 


LAXDS   Oy  ROADS  AND   STREETS.  115 

^n  dispute  and  the  parts  over  which  the  acts  of  ownership  have 
been  exercised  are  so  situated  that  they  may  fairly  be  considered 
as  parts  of  one  waste  or  common  (F^W^  Doe  v.  Eampson,  4  Com. 
Bench  i?.,  267  ;  Tyrrwhitt  v.  Wynne,  2  Barn.  &  Ad.  B.,  554 ; 
JloUis  V.  Goldfinch,  1  Barn.  &  Cres.  B.,  205;  Wild  v.  Bolt,  9 
Ilees.  &  Welsh.  B.,  672 ;  Taylor  v.  Bany;  1  Ilamitng^  & 
Granger's  B.,  605).  But  wliere  it  is  uncertain  whether  an  ancient 
grant  included  a  piece  of  waste  land  between  the  fence  and  the 
road,  the  English  Court  of  Common  Pleas  held  that  evidence  of 
user'l)y  the  grantee  and  those  claiming  under  him  will  be  allowed 
to  outweigh^the  presumption  in  favor  of  the  lord,  arising  from  acts 
of  ownership  by  him  on  other  parts  of  the  wastes  of  the  manor 
similarly  situated  {Simpson  v.  Bendy,  8  Com.  Bench  B.,  N.  S., 

433).  ,        ^        , 

The  origin  of  these  strips  of  waste  land  between  highroads  and 
inclosures^and  the  presumption  of  law  as  to  their  being  part  of 
the   adjoining  property,   is   thus   stated   by   Lord   Chief  Justice 
Abbott:  "In   remote  and  ancient   times,  when   roads  were  fre- 
quently made  through  uninclosed  lands,  and  they  were  not  formed 
with  that  exactness  which  the  exigencies  of  society  now  require,  it 
xvas  part  of  the  law  that  the  public,  where  the  road  was  out  of  repair, 
might  pass  along  the  land  by  the  side  of  the  road.     This  right  on 
the  part  of  the  public  was  attended  with  this  consequence,  that 
althoucdi  the  parishioners  were  bound  to  the  repair  of  the  road, 
yet,  if^an  owner  excluded  the  public  from  using  the  adjoimng 
land,  he  cast  upon  himself  the  onus  of  repairing  the  road.     It  the 
same  person  was  the  owner  of  the  land  on  both  sides,  and  mclosed 
both  sides,  he  was  bound  to  repair  the  whole  of  the  road;  if  he 
inclosed  on  one  side  only,  the  other  being  left  open,  he  was  bound 
to  repair  to  the  middle  of  the  road;  and  where   there   was  an 
ancient  inclosure  on  one  side,  and  the  owner  of  lands  inclosed  on 
the  other,  he  was  bound  to  repair  the  whole.     Hence  it  followed 
as  a  natural  consequence,  that  when  a  person  inclosed  his  land 
from  the  road  he  did  not  make  his  fence  close  to  the  road,  but  lett 
an  open  space  at  the  side  of  the  road,  to  be  used  by  the  public 
when  occasion  required.     This  appears  to  be  the  most  natural  and 
satisfactory  mode  of  explaining  the  frequency  of  wastes  left  at  the 
sides  of  the  roads;  the  object  was  to  leave  a  sufficiency  ol  land 
by  the  side  of  a  road  when  it  was  out  of  repair"  {Steel  v.  PickeU; 
2  StarUeh  B.,  469). 


116  LAW   OF  BOUNDARIES. 

Balks  are  strips  of  land  lying  between  the  lands  of  private  pro- 
prietors, and  are  commonly  used  for  turning  the  plough.  Until 
recently  it  was  supposed  that  there  was  no  presumption  of  law 
that  these  strips  of  land  belong  to  the  owners  on  either  side. 
This  was  so  declared  by  Taunton,  J.,  in  one  case  before  the  Eng- 
lish courts  {Godmandiester  v.  Phillips,  4  Adoljph.  cfe  Ellis  R., 
560).  But  the  English  Court  of  Common  Pleas  has  recently 
held  that  the  ordinary  presumption  is  that  strips  of  land  lying 
along  a  highway,  even  though  indirectly  connected  with  parts  of 
the  waste,  belong  to  the  owner  of  the  adjacent  inclosed  land, 
between  which  and  the  actual  beaten  road  they  lie,  and  not  to  the 
lord  of  the  manor,  especially  if  the  adjacent  owner  has  done  acts 
of  ownership  without  interruption  upon  the  land.  It  was  said 
that  such  strips  of  land  might  well  pass  under  a  conveyance  of 
the  adjacent  inclosure,  though  the  deed  purported  to  state  the 
quantity  of  acres,  within  the  fences,  that  were  therein  passed,  if 
it  had  the  words  "  more  or  less"  added  {Bendy  v.  Sim2)son,  10  J. 
Scott's  i?.,  N.  S.,  883 ;  S.  C,  100  Mig.  C.  L.  E.,  883).  By  the 
civil  law  a  vacant  space,  called  7nethoria  or  limitare  iter,  was 
ordered  to  be  left  between  the  boundaries  of  adjoining  proprietors. 
The  property  in  those  vacant  spaces  was  in  the  public ;  conse- 
quently they  could  not  be  made  the  subject  of  commerce,  and 
were  incapable  of  becoming  the  property  of  private  individuals 
(  Vide  Colquliouvb  s  Summary,  §  2179). 

The  law  is  well  settled,  both  in  this  country  and  in  England, 
that,  if  a  person  —  who  incloses  his  land  up  to  a  highway,  so  as  to 
deprive  the  public  of  their  right  of  traveling  on  the  adjoining 
strips  of  waste  land  where  the  road  itself  is  not  fit  for  use  —  neg- 
lects to  keep  the  road  in  repair,  passengers  may  make  gaps  in  the 
hedges  and  trespass  on  his  property,  so  long  as  they  do  not  ride 
farther  into  it  than  is  needful  for  avoiding  the  bad  way  {Heron^s 
Case,  Sir  W.  Jones,  297;  Dunoonibe's  Case,  1  Hollers  Ahr.,  390). 
In  a  case  before  the  present  Supreme  Court  of  the  State  of  New 
York  it  was  held  that  a  person  traveling  on  a  public  highway, 
which  has  become  founderous  and  impassable,  has  a  right  to 
remove  enough  of  the  fences  in  the  adjoining  close  to  enable  him 
to  pass  around  the  obstructions,  doing  no  unnecessary  injury;  but 
that  he  becomes  a  trespasser  if  he  tears  away  other  fences,  and 
tramples  down  the  herbage  in  other  parts  of  the  close  (  Williams 
V.  Saford,  7  Barh.  12.,  309). 


PROPERTY  IX  PARTY   WALLS.  117 

But  the  grantee  of  a^xn'vaie  way,  which  has  become  founderons 
and  impassable,  caimot,  witliout  being  a  trespasser,  go  in  the 
adjoining  close,  and  thus  pass  around  the  obstruction.     There  are 
some  cases  which  give  countenance  to  the  opinion  that  the  rule,  in 
this  respect,  is  the  same  in  the  case  of  a  private  as  of  a  public 
way.     This  opinion  was  intimated  by  Blackstone  in  his  Commen- 
taries, edition  of  1765,  and  by  Chief  Baron  Comyn  in  his  Digest, 
title  Chemin,  D.  C.     But  the  authorities  cited  in  support  of  the 
opinion  do  not  warrant  it;  for  they  all  seem  to  relate  to  2JuUic 
ways  only  (1  Saunders,  322,  a,  note  3).     The  principle,  however, 
does  not  apply  in  the  case  of  a  private  road,  because  the  person 
using  the  way  ought  himself  to  keep  it  in  repair,  and  because  the 
grantor  of  the  way  gives  the  grantee  a  right  only  over  a  particular 
liue  of  road,  and  gives  him  no  liberty  to  break  out  of  it  over  the 
whole  surface  of  his  close.     This  has  been  held  in  an  early  case  in 
England,  with  respect  to  private  ways  rendered  impassable  by  the 
overflow  of  a  river  {Taylor  v.  Whitehead,  2  Doug.  R.,  749).     And 
the  same  principle  was  again  asserted  in  a  later  English  case,  in 
which  Lord  Ellenborough  remarks  that  the  plaintiff  has  no  right 
to  break  out  of  the  road  and  go  at  random  over  the  whole  surface 
of  the  close  {Bullard  v.  Harrison,  4  2Iaule  &  Selwyn^s  E.,  3S7, 
392).     The  same  principle,  in  respect  to  private  ways,  has  been 
recognized,  also,  by  the  courts  of  this  country  ( Vide  IMiaes  v. 
Seeley,  19  Wend.  R.,  507;  Williams  v.  Safford,  7  Barl.  R.,  309). 
Independent  of  any  statutory  enactment,  where  two  proprietors 
are  separated  by  a  ditch  or  a  wall,  and  the  owner  on  one  side  con- 
veys his  land  bounding  the  grantee  on  the  ditch  or  wall,  the  grant 
is  presumed,  till  the  contrary  is  shown,  to  extend  to  the  center  of 
the  ditch  or  wall,  the   same  as  in  the   case  of  land  conveyed, 
bounded  on  an  unnavigable  river  or  highway.     In  a  case  decided 
by  the  Supreme  Court  of  Connecticut  it  appeared  that  a  party, 
having  made  a  ditch  six  feet  wide  through  his  land,  conveyed  a 
part  of  it,  bounding  the  grantee  on  the  ditch  ;  and  the  court  held 
that  the  grant  extended  to  the  middle  of  the  ditch  (  Warner  v. 
Soutlcworth,  6  Conn.  R.,  471). 

The  property  in  a  party  wall,  erected  at  the  joint  expense  of 
two  proprietors,  insures  the  property  of  the  land  on  which  it 
stands  where  the  quantity  of  land  contributed  by  each  party  is 
known.  There  is  no  transfer  of  property,  but  the  parties  are 
severally  owners  of  their  respective  lands  as  before  ;  and  each,  foi 


118  LAW  OF  BOUNDARIES. 

any  injury  to  the  portion  of  the  wall  standing  on  his  own  soil,  has 
the  ordinary  remedy  {JTatts  v.  IlawMns,  5  Taunton^ s  12.,  20).  So 
tlie  presumption,  in  case  of  boundary  on  party  walls,  is  that  the 
wall  and  the  land  upon  which  it  stands  belong  in  common  to  the 
(5wners  of  the  adjoining  premises  {Oiilitt  v.  Porter,  8  Barn.  <& 
Cres.  JR.,  257).  And  where  a  party  conveys  land,  bounding  it  in 
the  conveyance  upon  a  wall,  the  presumption  is  that  the  grantee 
takes  to  the  center  of  the  wall  {City  of  Boston  v.  Richardson,  13 
Allen's  R.,  146,  155). 


CHAPTEPw  X. 

EULES  FOE  THE  CONSTRUCTION  OF  GRANTS  IN  RESPECTT  TO  BOUNDARY 

PRINCIPLES  GOVERNING  THE  DESCRIPTIVE  LANGUAGE  OF  DEEDS  OF 
REAL  ESTATE THE  AIDS  AVHICH  MAY  BE  RESORTED  TO  IN  THE  CON- 
STRUCTION OF  CONVEYANCES  OF  LAND. 

There  are  some  general  rules  given  for  the  construction  of 
grants  of  real  property  which  are  important  to  understand.  In 
a  late  and  well-considered  case  before  the  Supreme  Judicial  Court 
of  Massachusetts,  the  general  rule  of  construction  of  conveyances 
of  land  were  thus  stated :  "  Whenever  land  is  described  as  bounded 
by  other  land,  or  by  a  building  or  structure,  the  name  of  which, 
according  to  its  legal  and  ordinary  meaning,  includes  the  title  in 
the  land  of  whicli  it  has  been  made  a  part,  as  a  house,  a  wall,  a 
whai-f  or  the  like,  the  side  of  the  land  or  structure  refen-ed  to  as 
a  boundaiy  is  the  limit  of  the  grant ;  but  where  the  boundary  line 
is  simply  by  an  object,  whether  natui*al  or  artificial,  tlie  name  of 
Avhich  is  used  in  ordinary  speech  as  defining  a  boundary,  and  not 
as  describing  a  title  in  fee,  and  which  does  not  in  its  description 
or  nature  include  the  earth  as  far  down  as  the  grantor  owns,  and 
yet  whicli  has  width,  as  in  the  case  of  a  way,  a  river,  a  ditch,  a 
wall,  a  fence,  a  tree  or  a  stake,  the  center  of  the  thing  so  running 
over  or  standing  on  the  land  is  the  line  of  boundary  of  tlie  lot 
granted"  {City  of  Boston  v.  Richardson,  12>  Allen^s  R.,  l-H,  157). 
This  statement  presents  the  general  doctrine  with  terseness  and 
point,  and  it  is  well  sustained  by  the  authorities. 

Another  rule  upon  the  subject  is  that  words  in  an  instrument 
of  grant,  as  elsewhere,  are  to  be  taken  in  the  sense  which  the  com- 


CONSTRUCTION  OF  GRA^TS.  119 

mon  usagp  of  mankind  has  applied  to  them.  If  lands  granted  are 
described  as  bounded  by  a  house,  no  one  can  suppose  the  house 
included  in  the  grant;  but  if  the  land  granted  is  described  as 
bounded  by  a  highway,  it  would  be  equally  absurd  to  suppose 
that  the  grantor  has  reserved  to  himself  the  right  to  the  soil  ad 
medhun  jilum^  in  the  far  greater  majority  of  cases  wholly  unpro- 
fitable. This  last  is  the  illustration  given  by  Coleridge,  J.,  in  an 
important  English  case;  and  it  is  in  accordance  with  judicial 
opinions  {Lord  v.  The  Gominissioners  of  Sidney,  12  Moore  P. 
C.  6^  473,  497;  vide,  also,  In  re  Belfast  Dock  Act,  1  Irish  Eq. 
li.,  128,  140  ;  2  Washburn  on  Heal  Property,  638). 

Again,  in  construing  conveyances  of  land,  effect  is  to  be  given 
to  every  part  of  the  description,  if  practicable ;  but,  if  the  thing 
intended  to  be  granted  appears  clearly  and  satisfactorily  from  any 
part  of  the  description,  and  other  circumstances  of  description  are 
mentioned  which  are  not  applicable  to  that  thing,  the  grant  will 
not  be  defeated  ;  but  those  circumstances  will  be  rejected  as  false 
or  mistaken  {Jackson  v.  Clark,  7  Johns.  P.,  217 ;  Jackson  v. 
Loomis,  18  ih.,  81 ;  Emerson  v.  White,  9  Foster's  P.,  482).  And 
what  is  most  material  and  7nost  certain  in  a  description  shall  pre- 
vail over  that  which  is  less  material  and  less  certain.  Thus, 
course  and  distance  shall  yield  to  natural  and  ascertained  objects ; 
as  a  river,  a  stream,  a  spring  or  a  marked  tree.  Indeed,  it  seems 
to  be  a  universal  rule  that  course  and  distance  must  yield  to 
natural,  visible  and  ascertained  objects  {Newton  v.  Prior,  7  Wheat. 
P.,  10;  Preston  v.  Bowman,  6  ib.,  582;  Patten  v.  Stitt,  6  Poh. 
P.,  631 ;  Jackson  v.  Camp,  1  Cow.  P.,  605 ;  Doe  v.  Thompson, 
5  ih.,  371;  Jackson  \.  Moore,  6  ih.,  706).  And  a  t^ilse  or  mis- 
taken particular  in  a  conveyance  may  be  rejected,  when  there  are 
definite  and  certain  particulars  sufficient  to  locate  the  grant.  But, 
'prima  facie,  a  fixed,  visible  monument  can  never  be  rejected  as 
false  or  mistaken  in  favor  of  mere  course  and  distance,  as  the 
starting  point,  when  there  is  nothing  else  in  the  terms  of  the 
grant  to  control  and  override  the  fixed  and  visible  call.  The 
general  rule  that  courses  and  distances  must  yield  to  natural  or 
artificial  monuments  or  objects  is  upon  the  legal  presumption  that 
all  grants  and  conveyances  are  made  with  reference  to  an  actual 
view  of  the  premises  by  the  parties  thereto  {Raynor  v.  Timerson, 
46  Barh.  P.,  518  ;  vide  Harvey  v.  Mitchell,  11  Foster's  P.,  575 
Smith  V.  Chatham,  14  Tex.  P.,  322).     AYhenever,  in  the  descrip 


120  LAW   OF  BOUXDARIES. 

tion  of  land  conveyed  by  deed,  known  monnments  are  referred  to 
as  boundaries,  they  must  govern,  although  neither  courses  nor  dis- 
tances nor  the  computed  contents  correspond  with  such  bounda- 
ries. This  has  lono;  been  reo-arded  as  one  of  the  fundamental  rules 
in  the  construction  of  deeds.  It  is  not,  however,  inflexible ;  but, 
like  other  rules  of  law,  it  must  sometimes  yield  to  exceptions. 
Said  the  court,  in  one  case,  the  only  reason  given,  or  which  can  be 
given,  why  monuments  are  to  control  the  courses  and  distances  in  a 
deed  is  that  the  former  are  less  liable  to  mistakes  {Davis  v.  Rains- 
ford,  17  Mass.  JR.,  210).  The  reason  elsewhere  assigned  for  the  rule 
is,  that  parties  are  presumed  to  have  contracted  with  I'eference  to 
an  actual  view  of  the  premises.  But  this  presuinption  of  law, 
that,  in  the  conveyance  of  real  estate,  the  parties  contract  with 
reference  to  the  visible  physical  condition  of  the  property  at  the 
time,  may  be  repelled  by  actual  knowledge,  on  the  part  of  the 
contracting  parties,  of  facts  which  negative  any  deduction  to  be 
drawn  from  the  apparent  condition.  Upon  proof  of  such  knov^- 
ledge,  they  are  presumed  to  have  contracted  not  solely  with  refer- 
ence to  the  condition  of  the  property,  as  it  would  have  been  pre- 
sented to  a  stranger,  but  as  it  was  known  to  be  by  the  parties 
{Simmons  v.  Cloorum,  47  JSF.  Y.  li.,  3 ;  and  vide  Curtiss  v, 
Ayraxdt,  ih.,  73).  And  where  the  grammatical  sense  of  words  is 
not  in  harmony  with  the  obvious  intention  of  the  parties,  the 
courts  do  not  hesitate  to  substitute  one  word  for  another,  for  the 
purpose  of  giving  effect  to  such  intention.  A  grammatical  con- 
struction must  never  be  allowed  to  interfere  with  the  intention  of 
an  instrument  {The  Long  Island  Railroad  Company  v.  Conklin, 
32  Barh.  7?.,  381 ;  Hancock  v.  Wilsm,  18  Cal.  R.,  137).  But 
punctuation  will  be  resorted  to  to  settle  the  meaning  of  an  instru- 
ment after  all  other  means  fail ;  although  punctuation  is  a  most 
fallible  standard  to  interpret  a  writing,  and  should  not  be  resorted 
to  until  all  other  means  fail.  The  court  will  fii'st  take  the  instru- 
ment by  its  four  corners,  in  order  to  ascertain  its  true  meaning ;  and 
if  that  is  apparent  on  judicially  inspecting  it  the  punctuation  will 
not  be  suffered  to  change  it  {Erving  v.  Burnet,  11  Peters''  R.,  41). 
Again,  a  grant  is  to  be  taken  most  strongly  against  the  grantor; 
and  whei'e  a  deed  may  inure  in  different  wa3^s,  the  grantee  is  enti- 
tled to  his  election  which  way  to  take  it  {Patten  v.  Stitt,  6  Roh.  R. 
431 ;  Iliddleton  v.  Pritchard,  1  Scam.  R.,  510 ;  Cocheco  Co.  v 
Whittier,  10  A^.  H.  R.,  305  ;  I)u?in  v.  English,  3  Zalr.  R.,  126). 


CONSTRUCTION  OF  GRANTS.  121 

Again,  it  is  a  cardinal  rule  in  the  construction  of  conveyances  ol 
land,  as  well  as  of  contracts,  that  the  intention  of  the  parties  is  to 
be  inquired  into,  and,  if  not  forbidden  by  law,  is  to  be  effectuated. 
And  a  deed  will  always  be  expounded  so  as  to  give  eflect  to  the 
intent  of  the  parties  {Jackson  v.  Beach,  1  Johns.  Cases,  399 ; 
Jackson  V.  Myers,  3  Johns.  R.,  388).  The  object  of  construction 
is  to  ascertain  the  intent  of  the  parties,  and  when  this  intent  is 
discovered  it  governs,  unless  the  language  employed  renders  it 
impossible  to  give  it  effect  (  Wolfe  v.  Scar^horough,  2  Ohio  R.,  N. 
S.,  361).  And  in  the  construction  of  deeds,  the  cardinal  rule  is 
to  arrive,  if  possible,  at  the  true  intent  and  meaning  of  the 
grantor,  from  a  fair  consideration  of  the  whole  instrument,  and 
then  to  give  effect  to  that  intention,  if  it  can  be  done  witliout  vio- 
lating any  rule  of  law;  and  if  the  instrument  bears  upon  its  face 
evidence  that  it  was  written  by  a  person  unskilled  in  legal  techni- 
calities, a  much  greater  latitude  of  construction  is  indulged  than 
when  it  is  formal  and  technical,  and  appears  to  have  been  drawn 
by  a  skillful  draftsman  {Ilamner  v.  Smith,  22  Ala.  R.,  433).  But 
the  intention  of  the  parties  to  a  deed  is  to  be  accomplished,  unless 
there  are  expressions  in  the  conveyance  which  positively  forbid  it 
{Peyton  v.  Ayres,  2  Md.  Ch.  R.,  64).  The  intent,  where  apparent 
and  not  repugnant  to  any  rule  of  law,  will  control  technical  terms  ; 
for  the  intent,  not  the  words,  is  the  essence  of  every  agreement. 
In  the  exposition  of  deeds,  the  construction  must  be  upon  the 
view  and  comparison  of  the  whole  instrument,  and  with  a  view  to 
give  every  part  of  it  meaning  and  effect  {Calkins  v.  Lavelle,  44  Yt. 
R.,  230).  The  rule  of  construction  is  well  settled,  that  every 
M'ord  in  the  instrument  is  to  have  its  effect,  if  an  effect  can  be 
given  to  it  not  inconsistent  with  the  general  intent  of  the  whole 
instrument,  when  taken  together,  and  no  word  is  to  be  rejected 
uidess  there  cannot  be  a  rational  construction  given  to  the  instru- 
ment with  the  words  as  they  are  found  {Churchill  v.  Reamer,  8 
BusJiS  R.,  256).  Too  much  regard  is  not  to  be  had 'to  the  proper 
and  exact  signification  of  words  and  sentences,  so  as  to  prevent 
the  simple  intention  of  the  parties  from  taking  effect.  And 
whenever  the  language  used  is  susceptible  of  more  than  one  inter- 
pretation, the  courts  will  look  at  the  surrounding  cirenmstancea 
existing  when  the  contract  was  entered  into,  the  situation  of  the 
parties,  and  of  the  sul)jcct-matter  of  the  instrument.  To  this 
exter.tj  at  least,  the  well-settled  rule  is,  that  extraneous  evidence 
16 


122  LAW  OF  BOUNDARIES. 

is  admissible  to  aid  in  the  construction  of  written  contracts  (  Wil- 
son T.  Tronjy,  2  Coio.  7?.,  195,  228 ;  ParTdiurst  v.  Smith,  Willes. 
It.,  332 ;  Bradley  v.  The  Washington,  Alex,  and  Geo.  S.  P.  Co., 
13  Peters'  R.,  89 ;  Gibson  v.  Tyson,  5  Watts  R.,  31).  A  deed 
must,  however,  receive  its  legal  construction  according  to  its 
language  and  subject-matter  {JaeJcson  v.  Tibhitts,  9  Cow.  R.,  2-41 ; 
and  vide  Gihsonv.  Bogy,  28  J/o.  R.,  478).  But  where  a  descrip- 
tion is  employed  in  a  deed,  which  has  not,  by  statute,  usage  or 
judicial  decision,  acquired  a  fixed  legal  construction,  or  a  boundary 
is  referred  to  which  is  fluctuating  and  variable,  other  means  must 
be  resorted  to  in  order  to  ascertain  the  meaning  and  construction 
of  the  deed.  For  example,  the  word  "  pond  "  used  in  a  deed  as  a 
description  is  indefinite.  It  may  mean  a  natural  pond,  or  an  arti- 
ficial pond  raised  for  mill  purposes,  either  permanent  or  temporary, 
and  in  both  cases  the  limits  of  such  body  of  water  may  vary  at 
different  times  and  seasons,  by  use,  or  by  natural  causes,  and  where 
the  one  or  t]ie  other  is  adopted  as  a  descriptive  limit  or  boundary, 
a  different  rule  of  construction  may  apply.  A  large  natural  pond 
may  have  a  definite  low-water  line,  and  then  it  would  seem  to  be 
the  most  natural  construction,  and  one  which  would  be  most  likely 
to  carry  into  effect  the  intent  of  the  parties,  doubtless,  to  hold 
that  land  bounded  upon  such  a  pond  would  extend  to  low-water 
line,  it  being  presumed  that  it  is  intended  to  give  to  the  grantee 
the  benefit  of  the  water,  whatever  it  may  be,  which  he  could  not 
have  upon  any  other  construction.  And  where  an  artificial  pond 
is  raised,  by  a  dam  swelling  a  stream  over  its  banks,  it  would  be 
natural  to  presume  that  a  grant  of  land  bounded  upon  such  a 
pond  would  extend  to  the  thread  of  the  stream  upon  which,  it  is 
raised,  unless  the  pond  had  been  so  long  kept  up  as  to  become 
permanent,  and  to  have  acquired  another  well-defined  boundary. 
So  where  such  an  object  is  used  as  a  boundary  in  a  deed,  accord- 
ing to  a  M'ell-established  rule  of  evidence,  it  is  competent  to  resort 
to  parol  proof,  showing  all  the  circumstances  from  which  a  legal 
inference  can  be  drawn  that  one  or  other  line  was  intended  by 
the  ambiguous  description  used  in  the  deed.  The  court  may  be 
aided  in  giving  construction  to  the  deed  by  resorting  to  means  out- 
side of  the  conveyance  itself. 

Usage  cannot  be  admitted  to  vary  or  contradict  a  deed.  But  if 
tlie  words  of  the  deed  are  of  uncertain  meaning,  usage  is  proper 
to  explain  them.    Deeds  are  to  be  expounded  by  their  terms  where 


COXSTRUCTION  OF  GRANTS.  123 

there  is  no  ambiguity,  and  neither  parol  evidence  nor  usage  can 
be  admitted  to  vary  or  contradict  a  written  instrument.  But  if 
the  words  used  in  a  deed  are  equivocal,  evidence  of  usage  ouglit 
to  be  admitted  as  the  best  expositor  of  the  intention  of  the  parties. 
Of  course,  if  the  words  are  clear  and  precise,  leaving  no  doubt  of 
the  intention  of  the  parties,  usage  will  not  aid  in  the  exposition, 
and  ought  not  to  be  admitted  (  Vide  Livingston  v.  TenJjroeck^  16 
Johns.  R.,  23 ;  Parsons  v.  Miller,  15  Wend.  B.,  561),  After 
ascertaining  the  existing  state  of  things  at  the  time  of  its  execu- 
tion, the  deed  must  be  left  to  speak  for  itself  {Swiek  v.  Sears,  1 
JlilVs  R.,  17).  And  the  construction  ought  to  be  made  on  the 
entire  deed,  not  on  any  particular  part  of  it ;  and  such  construc- 
tion should  be  given  that,  if  possible,  every  part  of  the  deed  may 
be  operative.  If  a  deed,  however,  cannot  operate  in  the  manner 
intended  by  the  parties,  such  a  construction  should  be  given,  tluit 
it  may  operate  in  some  other  manner  {Jackson  v.  Blodgett,  16 
Johns,  R.,  172).  If  a  general  clause  be  followed  by  special  words, 
which  accord  with  the  general  clause,  the  rule  is,  that  the  deed 
shall  be  construed  according  to  the  special  matter  {Mwiro  v. 
Allaire,  2  Gaiii's  R.,  320).  But  when  parts  of  a  particular  descrip- 
tion of  land  are  repugnant,  a  general  description  following 
may  be  resorted  to,  and  of  the  conflicting  parts  of  the  particular 
description,  that  is  to  be  rejected  whicli  does  not  concur  witli  tlie 
general  description  {Peaslee  v.  Gee,  19  JV.  H.  R.,  273).  AVhere 
subsequent  words  in  a  deed  are  of  doubtful  import,  they  will  not 
be  so  construed  as  to  contradict  preceding  words  which  are  cer- 
tain. Indeed,  as  has  been  before  affirmed,  in  the  construction  of 
deeds,  if  there  are  two  clauses  which  are  inconsistent  with  eaeli 
other,  the  last  must  give  way  to  tlie  first  {Petty  v.  Boothe,  Vb 
Ala.  R.,  633  ;  Tulhs  v.  Gatewood,  26  Ark.  R.,  128).  But,  if  the 
first  part  of  the  description  in  a  deed  is  complete  in  itself,  but 
further  matter  of  description  is  added  which  modifies  or  controls 
what  precedes  it,  the  latter  part  is  not  to  be  rejected  as  repugnant ; 
but  the  whole  language  of  the  deed  is  to  be  construed  together, 
if  it  may  be,  in  order  to  ascertain  the  true  construction.  But 
where  all  other  means  of  ascertaining  the  true  construction  of  a 
deed  fail,  and  a  doubt  still  remains,  that  construction  must  prevail 
which  is  the  most  favorable  to  the  grantee  {Clough  v.  Bowman, 
15  N.  II.  R.,  504 ;  and  vide  Mills  v.  Catlin,  22  Vt.  R.,  98  ;  Foy 
V.  Neal,  2  Strohh.  R.,  156).     And  a  construction  which  requires 


124  LAW  OF  BOUNDARIES. 

that  an  entire  clause  of  a  deed  should  be  rejected,  will  be  adopted 
only  from  unavoidable  necessity  {Citi/  of  Alton  v.  Illinois  Trans- 
formation Company,  12  111.  7?.,  38).     And  it  is  another  rule  of 
construction,  that  wb.ere  the  words  of  a  ^rant  are  ambiguous,  the 
courts  will  call  in  aid  the  acts  done  under  it,  as  a  clue  to  the  inten- 
tion of  the  parties.     Said  Lord  EUenborough,  Cli.  J.,  in  giving 
his  opinion  in  a  case  before  the  English  Court  of  King's  Bench: 
"  However  formal  the  words  of  the  ancient  deeds  may  be,  they 
are  to  be  construed,  as  Lord  Coke  says,  by  evidence  of  the  man- 
ner in  which  the  thing  has  been  always  possessed  and  used"  {Weld 
V.  Ilornhy,  7  Fast  R.,  195 ;  arid  vide  Doe  v.  Rice,  8  Bing.  R., 
181 ;  Winnijnsseogee,  etc.,  Co.  v.  Perley,  46  N.  H.  R.,  83 ;  Liv- 
ingston V.  Ten  Broeck,   16  Johns.  7?.,  22).     Where  a  deed  does 
not  contain  any  certain  description,  but  there  is  a  description  by 
circumstances,  and  all  the  circumstances  may  be  essential  to  dis- 
tinguish the  lands  intended  to  be  granted,  the  law  requires  all  the 
circumstances  to  l»e  proved,  and  will  not  suffer  any  lands  to  pass 
except  those  that  fall  within  the  terms  of  the  deed  {Bell  v.  Wood- 
ward, 46  iT.  Id.  R.,  315).     And  it  is  well  settled  that,  in  the  con- 
struction of  a  deed,  it  is  competent  for  the  court  to  inquire  into 
the  intent  of  the  parties ;  and  in  determining  such  intent,  when 
necessary,  to  look  at  their  acts  under  the  deed  {Mulford  v.  Le 
Franc,  26   Cal.   R.,  88).     Particularly  when  a  deed,  conveying 
land,  is  of  doubtful   construction  as  to  the  boundaries,  the  con- 
struction given  by  the  parties  themselves,  as  shown  by  their  acts 
and  admissions,  is  deemed  to  be  the  true  one,  unless  the  contrary 
be  clearly  shown  {Storie  v.  Clark,  1  Jlet.  R.,  378).     And  where 
the  construction  of  a  deed,  as  to  the  boundaries,  is  doubtful,  the 
occupation  of  the  land  by  the  grantee  to  what  he  supposed  to  be 
the  dividing  line  between  his  own  land  and  that  adjoining,  with- 
out objection  from  such  adjoining  proprietor,  has  been  held  to  be 
presumptive  evidence  of  the  true  place  of  the  line  {French  v. 
Pearce,  8   Conn.   R.,  439).     As  a  general  rule,  \owever,  deeds 
must  interpret  themselves  without  reference  to  che  acts  of  the 
parties.     Their  acts  themselves  do  not  aid  the  construction,  nor  is 
a  party  bound  by  his  own  construction  {JIutchins  v.  Dixon,  11 
Md.  R.,  29). 

Another  well-settled  rule  in  the  construction  of  deeds  is  that, 
where  certain  monuments  are  referred  to  in  a  description,  which 
do  not  exist  at  the  time,  and  afterward  the  ]3arties,  in  good  faith 


COXSTRUCTIOX  OF  GRAXTS.  125 

and  by  mutual  agreement,  put  np  monuments  as  and  for  those 
intended  in  the  description,  such  monuments  will  be  deemed  the 
monuments  intended  in  the  description.  And  this  placing  of 
monuments  and  the  consent  and  agreement  of  the  parties  in  rela- 
tion thereto  may  be  proved  by  parol.  This  is  suggested  by  Sliaw, 
Ch.  J.,  in  a  case  in  the  Supreme  Judicial  Court  of  Massachusetts, 
to  illustrate  the  rule  referred  to  (  Waterman  v.  Johnson,  13  Pick. 
i?.,  261,  267;  and  vide  Makepeace  v.  Bancroft,  12  Mass.  R., 
469).  The  question  whether  any  grant  extends  to  the  side  line 
or  the  center  line  of  a  highway  or  water-course  is,  doubtless, 
according  to  the  statement  made  by  Chief  Justice  Shaw,  in  Web- 
ber V.  Eastern  llailroad  (2  Metcalf,  151),  and  approved  by  the 
Supreme  Judicial  Court  of  Massachusetts  in  Codman  v.  Eoans 
(1  Allen,  446),  "a  question  of  construction  in  each  particular  case, 
and  depends,  as  in  all  cases,  upon  the  intent  of  the  parties,  as 
expressed  in  the  descriptive  parts  of  the  conveyance,  and  by  the 
localities  and  subject-matter  to  which  it  applies."  The  owner  of 
land  by  the  side  of  a  highway,  and  under  it  to  the  center  thereof, 
may,  of  course,  by  using  apt  words,  limit  his  grant  to  the  edge  of 
the  road,  and  retain  his  title  in  the  fee  of  the  soil  over  which  the 
highway  runs.  But  in  the  absence  of  words  clearly  manifesting, 
an  intent  so  to  do,  the  law  presumes,  as  was  argued  in  a  case  here- 
inbefore referred  to,  that  he  did  not  intend  to  reserve  the  title  in 
a  strip  of  land  not  capable  of  any  substantial  or  beneficial  use  by 
him,  after  having  parted  with  the  land  by  the  side  of  it,  while  the 
highway  remains,  nor,  ordinarily,  of  any  considerable  value  to  him 
if  tlie  way  should  be  discontinued,  and  the  ownership  of  wdiich  by 
him  might  greatly  embarrass  the  use  or  disposal,  by  his  grantee, 
of  the  lot  granted.  Hence,  where  general  terms  are  used  in  the 
description  in  a  deed,  the  court  will  construe  such  general  terms 
in  accordance  with  the  rule  definitely  established ;  and,  accord- 
ingly, if  the  conveyance  bounds  the  land  upon  a  highway  or  water- 
course, in  general  terms,  the  premises  conveyed  are  presumptively 
extended  by  legal  operation  to  the  center  of  the  highway,  or  the 
thread  of  the  water-course  or  unnavigable  river.  This  is  in  accord- 
ance with  well-settled  authority.  The  owner  of  land  on  each  side 
of  a  road,  or  stream  of  water  not  navigable,  \&,  prima  facie,  pre- 
sumed to  own  to  the  center,  subject  to  the  public  right  of  way. 
This  has  been  shown  in  a  previous  chapter ;  and,  in  the  construc- 
tion of  deeds,  the  general  rule  in  this  regard  is  that,  where  a  deed 


126  LAW  OF   BOUNDARIES. 

or  grant  of  land  is  bounded  oti  a  highway,  or  runs  alo7ig  a  high- 
way, or  where  the  boundary  line  runs  to  a  highway,  it  conveys 
the  land  to  the  center  of  the  road,  unless  there  be  decided  and  con 
trolling  words  or  specific  description,  to  show  the  contrary  intent. 
Where  the  boundary  given  in  a  deed  has  physical  extent,  as  a 
road,  lane,  street,  fence,  creek  or  nnnavigable  river,  the  grantee 
presumptively  takes  to  the  center  of  the  object  so  given.  This  is 
the  general  rule  or  princii^le  of  construction  applied  to  conveyan- 
ces {Jackson  V.  Ilathaioay,  15  Johns.  H.,  447).  The  decisions 
have  carried  the  doctrine  so  far  as  to  hold  that  a  description  which 
runs  to  the  hank  of  a  creek,  and  thence  along  the  hank  of  such 
creek,  carries  the  grant  to  the  center  of  the  creek.  But  where 
the  description  is  expressly  limited  to  the  hank^  or  where  it  runs 
along  the  side  of  a  road,  the  grant  is  held  to  be  restricted,  and  not 
to  include  the  land  to  the  center  of  the  road  or  of  the  stream.  No 
principles  appear  to  be  better  settled  than  these,  especially  as 
applicable  to  country  lands;  and  the  Superior  Court  of  the  city  of 
New  York  decided,  years  ago,  that  the  rule  of  construction  as 
to  the  extent  to  which  a  grant  of  land,  bounded  on  a  road  or 
creek,  carries  the  rights  of  the  grantee,  in  respect  of  the  adjacent 
ground  within  the  road  or  the  creek,  applies  equally  to  city 
lots  and  to  farms  in  the  country  {Ilamraond  v.  McLachlan,  1 
Sand.  R.,  323).  And  the  same  general  doctrine  has  been  recog- 
nized by  the  New  York  Court  of  Appeals  in  a  case  in  which  the 
doctrine  of  the  Superior  Court  was  referred  to  and  impli- 
edly approved  {Sherman  v.  McKeon,  38  JSf.  Y.  B.,  266,  271). 
And  the  Supreme  Court  of  Minnesota  has  recently  declared  that 
it  is  a  rule  of  public  policy,  not  to  be  departed  from  unless  the 
intention  of  the  parties  to  the  contrary  is  expressed  in  the  most 
unmistakable  language,  that  a  deed  of  a  lot  bounded  by  a  street 
conveys  the  fee  to  the  center  of  the  street  {Mankato  v.  Willard, 
13  Minn.  Ii.,  13).  And  to  the  same  effect  is  the  doctrine  of  a 
late  case  decided  by  the  Supreme  Judicial  Court  of  Massachusetts, 
in  which  it  was  held  that  a  deed  bounding  land  generally  by  a 
highway,  with  no  restrictive  or  controlling  words,  conveys  the 
grantor's  title  in  the  land  to  the  middle  of  the  highway  {Boston 
V.  Eichardson,  13  Alleyi's  B.,  146  ;  and  vide  Glasby  v.  Morris, 
3  Green's  JV.  J.  i?.,  72).  Reference  may  also  be  made  to  a  late 
ease  decided  by  the  Supreme  Court  of  Wisconsin,  in  which  it  was 
said  that,  if  a  highway  or  river  is  named  in  a  deed  as  a  boundai-y 


COXSTRUCTIOX  OF  GRANTS.  127 

of  land  conveyed,  tlie  center  of  such  highway  or  river  is  to  bo 
understood,  unless  there  are  express  words  limiting  the  boundary 
to  the  bank  of  the  river  or  the  side  of  the  highway  ;  and  wdiere 
there  is  a  known  and  well  ascertained  place  of  beginning  in  the 
description  in  a  deed,  that  must  govern,  and  the  grant  must  be 
conlined  within  the  boundaries  given  {Gove  v.  White,  20  Wis.  li., 
425).  It  has  been  held  by  the  Supreme  Court  of  Vermont  that 
if  the  language  of  a  deed,  describing  land  conveyed  bounded  upon 
a  highway,  leaves  it  doubtful  whether  the  grantor  intended  the 
line  to  be  in  the  center  or  on  the  side  of  the  highway,  the  boundary 
will  be  construed  to  be  the  center  of  the  road.  And  the  doctrine 
w-as  in  terms  laid  down,  that  where  land  is  bounded  "  upon,"  "  on  " 
or  "along"  a  highway,  the  presumption  is  that  the  line  extends 
to  the  middle  of  the  highway  {Marsh  v.  Burt,  34  Vt.  B.,  289). 
And  the  courts  of  New  York  hold  to  the  doctrine,  that  a  convey- 
ance bounding  premises  generally  on  a  street,  or  highway,  or 
stream  of  water  not  navigable,  carries  the  fee  to  the  center  of  the 
street  or  stream  {People  v.  Law,  S-t  Barb.  R.,  494  ;  Wetrn.ore  v. 
Law,  lb.,  515;  Dunhara  v.  Williams,  36  ib.,  136-;  /Seneca  v. 
Enight,  23  N.  Y.  E.,  498).  Indeed,  it  has  been  held  by  high 
authority  that  where  land  is  sold  bordering  on  a  highway,  the 
mere  fact  that  it  is  not  so  described  in  the  deed  will  not  vary  the 
construction.  The  grantee  takes  the  fee  to  the  middle  of  the  high- 
way, on  the  line  of  which  the  land  is  situated  {Gear  v.  Barnum, 
37  Conn.  R.,  229  :  Stark  v.  Cojjin,  105  Mass.  R.,  328 ;  Llawesmlle 
V,  Lander,  8  Bush's  R.,  679).  But  this  doctrine,  perhaps,  has  but 
little  to  do  with  the  construction  to  be  given  to  a  grant  or  convey- 
ance. It  is  not  a  rule  for  settling  the  true  construction  of  a  deed. 
When  a  man  presents  his  deed,  ordinarily  the  law  nuikes  no  pre- 
sumption concerning  his  title  ;  he  holds  by  force  of  his  grant ;  he 
goes  to  the  limit  which  that  prescribes,  and  by  that  limit  he  is 
bounded.  If  there  is  anything  equivocal  in  the  language  of  the 
grant,  the  courts  declare  its  interpretation.  But  if  the  parties 
have  used  plain  and  explicit  language  —  if  they  have  fixed  a 
boundary  which  no  man  can  mistake  —  courts  have  nothing  to  say 
about  it ;  construction  in  that  case  has  no  office  to  perform,  and 
the  law  makes  no  intendment.  It  may  be  regarded  as  a  misap- 
plication of  the  rule  of  law  concerning  highways  and  unnavigable 
streams  to  say  that  it  has  anything  to  do  with  the  construction  of 
a  deed,  or  by  way  of  fixing  the  boundaries  of  a  grant.     The  pre* 


128  LAW  OF  BOUNDARIES. 

sumption  in  favor  of  riparian  owners,  and  the  owners  of  lands 
adjoinini^  a  highway,  is  only  indulged  in  the  absence  of  any  direct 
evidence  of  the  boundary  ;  it  is  never  used  for  the  purpose  of 
enlarging,  qualifying  or  in  any  manner  affecting  the  written  muni- 
ments of  title,  or  the  limits  which  they  prescribe.  And  yet  it 
seems  pertinent  to  refer  to  the  presumptions  of  law  in  these  cases, 
in  connection  with  the  consideration  of  the  rules  of  construction 
of  grants  in  respect  to  boundary  of  lands  conveyed.  It  is  an  old 
maxim  that  "  the  scope  and  end  of  every  matter  is  principally  to 
be  considered ;  and  if  the  scope  and  end  of  the  matter  be  satis- 
fied, then  is  the  matter  itself  and  the  intent  thereof  also  accom- 
plished." According  to  Lord  Hobart,  "  the  law,  being  to  judge  of 
an  act,  deed  or  bargain,  consisting  of  divers  focts,  containing  the 
will  and  intent  of  tlie  parties,  all  tending  to  one  end,  doth  judge 
the  whole,  and  gives  evevj  part  his  office  to  make  up  that  intent, 
and  doth  not  break  the  words  in  pieces"  {Clanrichard  v.  Sidney, 
Hoharfs  7?.,  273,  275).  The  intent  of  tlie  parties  to  a  deed  is  to 
govern  the  question  of  boundary,  as  before  suggested  ;  and  it  is  the 
duty  of  the  court,  when  called  upon  to  give  construction  to  a  deed, 
to  find  by  established  rules  what  was  the  fair,  natural  and  proba- 
ble intent  of  the  parties  to  the  document.  For  this  purpose,  the 
language  employed  in  the  conveyance  is  first  to  be  resorted  to. 
If  the  words  employed  are  free  from  ambiguity  and  doubt,  and 
express  plainly  and  distinctly  the  intent  according  to  the  most 
natural  import  of  the  language,  there  is  no  occasion  to  look  else- 
where. But  where  the  meaning  of  words  is  doubtful,  or  where  it 
is  seen  the  same  words  have  diflerent  meanings,  when  employed 
nnder  different  circumstances  or  to  effect  different  objects,  resort 
may  be  had  to  extrinsic  circumstances ;  and  the  courts  may  seek 
for  that  intent  in  every  legitimate  way  (  Vide  Long  v.  Wagcner, 
47  Mo.  R.,  178). 

Another  rule  of  construction  may  be  here  referred  to,  viz.,  that 
a  clear  general  description  of  the  premises  in  a  deed  is  not  con- 
trolled by  any  subsequent  expressions  of  doubtful  import  in  respect 
to  certain  particulars  {Ela  v.  Card.,  3  N.  II.  li.,  175).  But  words 
of  general  description  in  a  deed  are  controlled  and  rendered  cer- 
tain by  the  particular  description  of  the  premises,  which  the  deed 
purports  to  convey  {Smith  v.  Stro^ig.,  14  Pick.  R.,  128  ;  Barnard 
V.  Martin.,  5  N.  H.  R.,  530).  If  the  descriptive  words  of  a  deed 
are  wholly  without  ambiguity,  and  are  followed  by  a  clause  repug- 


CONSTRUCTION  OF  GRANTS.  129 

nant,  this  second  clause  must  be  rejected  {Catler  v.  Tufts.,  3  Pick. 
i?.,  272).     On  the  same  principle,  courses  laid  down  in  a  deed 
which  are  regugnant  to  the  remainder  of  the  description   may  be 
rejected,  if  the  remainder  contains   sufficient  that  is  intelligible 
and  consistent  to  uphold  the  deed  according  to  the  evident  inten- 
tion of  the  parties  {Beat  v.  Garden,  55  Maim  R.,  482 ;  Johnson 
V.  Simjjson,  36  iV^.  //.  B .,  91 ;  Reed  v.  Sjncer,  27  Cat.  R.,  57). 
And  where  several  particulars  descriptive  of  the  land  conveyed 
by  a  deed  are  named  therein,  some  of  which  are  false,  if  the  true 
are  sufficient   to   designate   the   land,  the   false  will   be   rejected 
{AhoU  V.  AhoU,  53  Maine  R.,  356).     So,  also,  if  the  description 
of  the  boundaries  in  a  deed  of  land  equally  admits  of  two  con- 
structions, one  of  which  would  make  the  quantity  of  land  con- 
veyed agree  with  that   mentioned  in  the  deed,  while  the  other 
would  make  the  quantity  conveyed  largely  exceed  that  mentioned 
in  tlie  deed,  the  former  construction  must  prevail  {Herrick  v. 
Sixby,  Law  R.,  1  P.  C,  430).     Where  a  conveyance  contains  a. 
general  description  of  the  property,  which  is  definite  and  cer- 
tain in  itself,  and  is  followed  by  a  particular  description,  the  latter 
will  not  limit  the  grant  which  is  clear  by  the  former.     Bat  where 
the  general  description  is  indefinite  and  uncertain,  and  reference 
to  the  particular  description  must  be  had  to  ascertain  with  cer- 
tainty the  subject  of  the  grant,  the  whole  language  must  be  taken 
together,  and  if  upon  the  whole  instrument  there  is  sufficient  to 
manifest  the   intention  of  the   parties  with  reasonable  certainty, 
that  will  suffice  {Barney  v.  Miller,  18  loioa  R.,  460  ;  a7id  vide 
Myers  v.  Ladd,  26  III.  R.,  415).     And  general  words  in  a  deed,, 
descriptive  of  the  land  conveyed,  will  not  be  restrained  by  restric- 
tive words,  added  ex  majore  cantela,  or  by  affirmative  words  more 
restrictive,  which  have  no  tendency  to  make  a  general  description 
ambiguous  and  uncertain  {Bott  v.  Burnell,  11  Mass.  R.,  163).    If 
two  clauses  in  a  deed  stand  in  irreconcilable  contradiction  to  each 
other,  the  first  clause  will  prevail,  and  the  latter  be  regarded  as- 
inoperative  ;  and  the  law  will  construe  that  part  of  a  deed  to  pre- 
cede  which  ought  to  take  precedence,  in  whatever  part  of  the 
instrument  it  may  in  fact  be  {Doe  v.  Porter,  3  Pile's  R.,  IS  ;  vide- 
Tucker  v.  Meeks,  2  Sweeney's  R.,  736). 

It  is  a  sound  rule,  in  the  construction  of  a  deed,  that  a  perfect 
description,  which  fully  ascertains  the  corpus,  is  not  to  be  defeated] 
by  the  addition  of  a  further  and  false  description.     But  the  court 
17 


130  LAW  OF  BOUXDARIES. 

has  no  right  to  strike  out  one  part  of  the  description  more  than 
another,  unless  the  part  retained  completely  fits  the  subject 
claimed,  and  the  rejected  part  does  not ;  and  unless,  further,  it 
appear  that  the  whole  description,  including  the  part  sought  to  be 
rejected,  is  applicable  to  no  other  thing.  It  must  be  shown,  at 
least  to  the  degree  of  moral  probability,  that  there  is  no  cotjus 
that  will  answer  the  description  in  every  particular  {Mayo  \. 
Blount,  1  IredelVs  B.,  283),  Where  a  general  description  of  the 
land  intended  to  be  conveyed  is  given  in  a  deed,  and  also  the 
particular  boundaries,  the  latter  are  to  govern  {Thovnd'ike  v. 
liichards,  1  Shej)lei/s  E.,  430 ;  Woodman  v.  Lane,  7  N. 
II.  R.,  241).  And  general  words  in  a  deed  are  never 
restrained  by  restrictive  w^ords  added,  when  such  words  do  not 
clearly  indicate  the  intention  and  designate  the  grant  {Field  v. 
Huston,  8  Shej?.  12.,  69).  If  the  description  in  a  deed  be  so  vague 
and  contradictory  that  it  cannot  be  ascertained  what  is  meant,  the 
deed  is  void.  But  different  descriptions  will  be  reconciled,  if 
possible ;  or,  if  irreii'.ediable,  yet  if  one  of  them  point  out  the 
thing  intended,  a  false  or  mistaken  reference  to  another  particu- 
lar will  not  avoid  it  {Proctor  v.  Pool,  4  Dev.  P.,  370 ;  vide  Camp- 
hell  V.  Johnson,  44  Mo.  P.,  240).  When  there  is  a  sufficient 
description  of  premises  set  forth  in  a  deed,  by  giving  the  particular 
name  of  a  close  or  otherwise,  a  flilse  demonstration  may  be 
rejected  ;  but  if  premises  be  desci'ibed  in  general  terms,  and  a 
particular  description  be  added,  the  latter  controls  the  former 
{MaT^epeace  v.  Bancroft,  12  Mass.  P.,  469 ;  1  Greenleafs  Ev., 
301).  AVhere  there  are  two  descriptions  in  a  deed,  one  of  which 
is  correct  and  complete  in  itself,  and  the  other,  which  is  subordi- 
nate, is  not  so,  the  latter  will  be  rejected  as  surplusage  {Myers  v. 
Ladd,  26  III.  P.,  415).  And  later  words  in  a  deed,  which  contra- 
dict the  previous,  are  to  be  rejected,  if  they  cannot  be  reconciled 
with  the  obvious  intent  of  the  instrument  {Havens  v.  Dale,  18 
Cal.  P.,  359).  When  a  deed  contains  two  conflicting  descriptions 
of  the  granted  premises,  of  equal  authority,  it  seems  that  the  one 
the  more  favorable  to  the  grantee  will  be  adopted  ( Vance  v.  Fore, 
54  Cal.  P.,  435).  So  a  deed  poll,  ambiguous  in  its  terms,  in  the 
absence  of^any  other  mode  of  ascertaining  the  intent  of  the  party 
executing  it,  is  to  be  taken  most  strongly  against  the  party  execu- 
i:ing  it  {Beeson  v.  Patterson,  36  Penn.  P.,  24).  But  when  there 
are  contradictory  descriptions  given  of  a  thing,  that  description 


CONSTRUCTION  OF  GRANTS. 


lai 


;vill  be  adopted  which,  in  its  nature,  is  least  liable  to  be  erroneous 
[2mer  V.  Cheney,  3  Jones^  Eq.  R.  24).     If  the  language  ot  the 
instrument  is  susceptible  of  more  than  one  construction,  the  intent 
of  the  parties  to  be  collected  from  the  whole  instniment  must 
govern  ;  and,  in  order  to  ascertain  that  intent,  the  court  may  take 
?uto  consideration  the  extrinsic  circumstances  authorizing  the  trans- 
action, the  situation  of  the  parties,  and  the  subject-matter  ot  the 
instrument.     This  is  the  estabhshed  rule  of  the  common^  law  and, 
in  respect  to  conveyances  of  real  estate  in  the  State  of  TSew  \ovk 
has  been  declared  by  statute  {French  v.  Carhari,  1  N.  J.  A.,  K-)- 
The  rule  that  a  grant  is  to  be  construed  most  favorably  tor  the 
grantee,  is  inapplicable  where  the  State  is  grantor ;  and  it  has  been 
held   at  least  in  one  case,  that  the  rule  is  also  inapplicable  where 
the  cn-antor  is  a  corporation  holding  a  street  for  public  purposes, 
and  disposing  of  the  adjacent  lots  for  private  nse,  and  that  in 
such  case  the  boundary  of  the  private  property  by  that  held  lor 
public  purposes,  will  be  the  dividing  line  between  the  two,  the 
same  as  when  one  lot  is  bounded  by  another  {Wetmore  v.  Story, 
2'>  Barh  R    414).     When  one  deed  refers  to  a  description  m 
another  deed,  the  description  in  the  second  deed  becomes  a  part  of 
the  first  (  Vance  v.  Fore,  24  Cal.  R.,  435  ;  and  mde  Wildman  v. 
Taylor,  4  BenMicfs  R.,  42). 

Words  indicating  quantity  in  the  descriptive  part  of  a  deed, 
when  conflicting  with  words  of  more  accurate  description,  yield. 
Quantity  is  regarded  as  the  least  certain  mode  of  describing  land, 
and  hence  must  yield  to  description  by  boundaries  and  distances 
But  still,  words  indicating  quantity  are  to  be  regarded  as  part  of 
the  description,  and  are  not  qualified  by  this_ addition  of  the  woi-ds 
-more  or  less  "  {Pierce  v.  Fanner,  37  Maine  R.,  63  ;   Chandler 
y  IfcCord,  38  ih.,  564).     In  construing  a  deed,  words  cannot  be 
transposed  in  order  to  give  the  instrument  efficacy,  unless  there  is 
something  which  shows  that  reading  the  deed  as  it  is,  will  deteat 
the  intendon,  and  that  by  transposing  words  or  sentences,  or  leav- 
ing out  parts,  the  deed  will  be  rendered  effectual  m  the  manner 
intended  by  the  parties,  though  badly  expressed.     And  in  constru- 
ing a  deed,  a  provision  relative  to  one  subject  cannot  be    aken 
from  that  subject  and  applied  to  another,  in  order  to  give  a  ditter- 
ent  meaning  to  the  instrument  {Kea  y.  Boheson,  5  ImL  Jiq  J.., 
373)      But^  a  boundarv  mentioned  in  a  deed  may  be  rejected 
where  it  is  clear,  from  all  the  circumstances  of  the  case,  that  it 


13g  LAW  OF  BOUNDARIES. 

was  erroneously  inserted  {Bosworth  v.  Sturtemint,  2  Cush.  R., 
392).  When  a  line  is  given  in  a  deed  as  running  from  one  monu- 
ment to  another,  it  is  always  presumed  to  be  a  straight  line,  unless 
a  difierent  line  is  described  in  the  deed,  so  that  by  ascertaining 
the  monuments  at  the  angles  of  a  parcel  of  land,  the  boundary 
lines  can  at  once  be  determined  {Allen  \.Kingshury^  16  Pich.  B., 
23 S,  239).  A  conveyance  is  to  be  construed  in  reference  to  its 
visible  locative  calls,  as  marked  or  appearing  upon  the  land,  in 
preference  to  quantity,  course,  distance,  map  or  anything  else,  as 
they  are  more  material  and  certain  in  their  character  (  Van  Wijck 
V.  Wright,  18  Wend.  B.,  157 ;  Loomis  v.  Jackson,  19  Johns.  B., 
44:9;  Doe  v.  Thompson,  5  Cotv.  B.,  371). 

It  is  well  settled  by  the  authorities  tliat  a  plat  or  map,  referred 
to  in  a  deed,  becomes,  for  the  purpose  of  identifying  the  land,  a 
part  of  tlie  deed  itself  {Seaward  v.  Malotte,  15  Cal.  B.,  304 ; 
Vance  v.  i^ore,  24  ib.,  435 ;  Lincoln  v.  Wilder,  29  Maine  B., 
169).  The  general  rule  in  regard  to  the  construction  of  the 
description  of  the  premises  in  a  deed  is  one  of  the  utmost  liber- 
ality. The  intent  of  the  parties,  if  it  can  by  any  possibility  be 
gathered  from  the  language  employed,  will  be  efltectuated.  And 
where  one  deed  refers  to  another  for  description  of  the  granted 
premises,  reference  may  be  had  to  the  descriptioi»  in  the  latter  to 
aid  in  the  construction  of  the  description  of  the  former  {The  Ger- 
man Mutual  Insurance  Company  of  Indianapolis  v.  Grim,  3 
All.  L.  J.,  73 ;  S.  C,  32  Ind.  B.,  250).  A  deed  must  be  con- 
strued, as  before  stated,  so  as  to  carry  into  effect  the  intention  of 
the  grantor  if  it  can  be  ascertained ;  and  if  it  cannot,  then  in  the 
manner  the  most  favorable  for  the  grantee,  on  the  principle  that  a 
grant  is  to  be  taken  most  strongly  against  the  grantor.  The  more 
certain  and  more  prominent  of  two  monuments  referred  to  in  a 
deed,  which  are  incompatible  witli  each  other,  must  prevail  over 
the  other.  The  rule  is  quite  plain  that  a  general  description  may 
be  affirmed  or  restricted  by  a  special  one ;  but  the  difficulty  con- 
sists in  the  application  of  it,  and  in  determining  whether  the  lan- 
guage was  used  in  a  restrictive  sense ;  and  it  is  difficult  to  find 
any  precise  rule,  furnishing  an  unerring  guide  in  such  inquiry. 
The  leading  idea  to  be  obtained  from  the  case  is,  that  what  is  more 
certain  shall  prevail  over  that  which  is  less  so;  and  the  part  of  a 
description  which  the  parties  must  be  supposed  most  fully  to 
understand,  will  triumpli  over  that  which  is  more  obscure  and 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  133 

uncertain  {Lincoln  v.  Wilder^  29  Maine  R.,  169).  The  descrip- 
tion of  land  in  a  deed  which  seems  certain  and  without  ambi- 
guity, for  anything  appearing  on  the  face  of  the  deed,  is  not  ren- 
dered uncertain  by  extrinsic  facts,  and  parol  evidence  is  not 
admissible  to  contradict  such  description  {Bratton  v.  Clawson.,  3 
Sirobli.  E.,  127). 

It  may  be  added  that  the  construction  of  a  deed  from  the  State 
or  other  public  body,  in  respect  to  the  description  of  the  land  con- 
veyed, must  be  the  same  as  if  such  description  were  used  in  a 
deed  between  private  individuals.  The  doctrine  of  strict  construc- 
tion, as  applied  to  the  execution  of  naked  statutory  powers,  has 
no  application  in  such  case.  This  doctrine  was  declared  by  the 
Supreme  Court  of  the  State  of  Illinois,  in  the  case  of  a  tax-deed, 
and  it  would  seem  to  be  reasonable  and  sound  {Blakeley  v.  Besto)\ 
13  III  i?.,  708). 


CHAPTER  XL 

CONSTRUCTION    OF    PARTICULAR   CONVEYANCES    IN    RESPECT   TO  BOUND-  ' 

ARY ILLUSTRATIONS    OF    THE    RULES    OF    CONSTRUCTION     BY    THE 

CASES    CONSIDERED CASES    MISCELLANEOUSLY    STATED. 

The  rules  which  have  been  settled  for  the  construction  of  grants 
in  respect  to  boundary,  and  the  principles  by  which  the  descrip- 
tive language  of  deeds  is  to  be  governed,  will  further  appear  by 
the  consideration  of  a  few  of  the  leading  cases  in  which  particular 
conveyances  have  been  construed  by  the  courts.  The  cases  will 
be  given  without  reference  to  the  dates  or  places  where  decided. 

A  very  recent  case  came  before  the  Supreme  Court  of  the  State 
of  New  York,  not  yet  reported,  in  which  the  author  was  engaged 
as  counsel,  and  which  involved  the  construction  of  a  deed  con- 
veying a  parcel  of  land  lying  between  the  Oswego  canal  and  a 
*' hydraulic  canal"  in  the  village  of  Fulton.  The  language  of  the 
description  in  the  conveyance  was  as  follows :  "  That  parcel  of 
land  situate  in  the  village  of  Fulton,  as  the  same  is  laid  down  on 
Peter  Schenck'r,  map  of  said  village,  made  in  1844,  with  amend- 
ments in  1S53,  now  on  file  in  Oswego  county  clerk's  office,  viz., 
Lots  1  and  2,  between  the  mill  canal  and  Oswego  canal,  on  block 
No.  19."     The   defendants  claimed  that  the   description  in  the 


134  LAW  OF  BOUNDARIES. 

deed  carried  them  to  the  center  of  the  "  mill  canal ;"  and  the 
M'hole  case  turned  upon  the  construction  to  be  given  to  tlie 
descriptive  language  used  in  the  conveyance.  The  case  was  tried 
before  a  referee,  who  decided  that  the  defendants  took  no  title  to 
any  part  of  the  mill  canal  under  their  deed,  and  his  decision  was 
affirmed  on  appeal  to  the  General  Term.  The  facts  of  the  case 
were  referred  to  as  tendins;  to  aid  the  court  in  givino;  construction 
to  the  deed.  Talcott,  J.,  who  delivered  the  opinion,  said :  "  "We 
think  the  conclusion  of  the  learned  referee  was  correct.  As  we 
understand  the  case,  the  mills  were  situated  on  the  westerly  side 
of  the  canal,  and  the  water  contained  in  the  canal  could  not  be 
used  for  power  on  the  easterly  side.  The  points  of  the  counsel 
for  the  defendants  state  that  '  there  was  no  way  of  discharging 
water  from  the  lots  on  the  east  side  of  their  mill  canal.  There 
was  no  wall,  and  no  gates  on  that  side,  and  no  reason  for  any 
restrictions;'  and  such  we  understand  to  be  the  conceded  tacts  of 
the  case.  It  is,  and  was,  therefore,  obvious  that  this  'mill  canal' 
was  merely  an  artificial  reservoir,  designed  to  hold  water  for  the 
mills,  and  to  be  for  the  use  of  the  mills.  It  may  be  conceded  that, 
if  the  mill  canal  had  been  a  natural  stream  of  water,  the  convey- 
ances in  this  case  wou^d  have  carried  the  defendants'  title  to  the 
filum  aquce.  This,  however,  is  not  always  true,  even  in  regard  to 
natural  streams.  As  is  said  by  the  Court  of  Appeals  in  Dunhar 
V.  Williams  (37  JV.  Y.,  250) :  '  The  presumption  in  favor  of  an 
adjacent  proprietor  and  of  his  successors  in  interest  is  not  a  ^^r^- 
sumjAlo  juris  et  dejure,  but  yields  to  the  evidence  displacing  the 
grounds  on  which  it  rests.'  It  was,  therefore,  held  in  that  case 
that  the  presumption,  that  a  conveyance  to  the  center  line  is 
intended,  arises  only  where  the  grantor  is  owner  of  the  fee  to  the 
center  line.  Much  less  does  this  presumption  conclusively  arise 
where  the  body  of  water  is  contained  in  an  artificial  reservoir, 
constructed  for  purposes  wholly  irrespective  of  any  connection 
with  the  premises  conveyed  by  the  conveyances  to  which  the  pre- 
sumption is  sought  to  be  applied,  and  where  such  a  presumption 
would  be  inconsistent  with  the  uses  and  purposes  for  which  it  is 
obvious  the  way  or  water  reservoir  was  created.  *  *  *  Here 
the  claim  of  the  defendants  to  go  to  the  center  of  the  mill  canal 
is  based  solely  upon  the  fact  that  the  map  referred  to  in  the  con- 
veyance, under  which  they  claim,  represents  their  premises  as  run- 
ning to  the  westerly  bounds  of  the  canal.     On  the  same  map  the 


CONSTRUCTTON  OF  PARTICULAR    GRANTS.  135 

canal  is  laid  down  as  the  '  mill  canal.'  It  was  manifestly  an  arti- 
ficial construction,  intended  solely  for  the  use  and  benefit  of  the 
mills  constructed  on  the  west  side  of  the  canal ;  and  the  descrip- 
tion of  it  as  the  mill  canal  was  a  clear  indication  that  the  canal 
was  intended  for  and  appropriated  to  the  mills,  and  was  not 
intended  as  a  mere  boundary  or  division  between  the  lots  lying 
east  and  west  of  it.  *  *  *  Since  it  is  established  that  the 
presumption  of  an  intent  to  convey  to  the  center  of  the  object 
upon  which  the  land  conveyed  abuts  may  be  refuted  by  proof  of 
extraneous  circumstances,  we  think  the  surrounding  circumstances 
which  appear  in  this  c^se  are  sufficient  to  rebut  any  presumption 
that  the  grantors  in  the  deed,  mider  which  the  defendants  claim, 
intended  to  convey  by  that  deed  any  rights  in  the  mill  canal" 
{Hqf  V.  Tohj,  G.  v.,  Uh  Dej).,  1873). 

In  this  case,  the  premises  convej'^ed  to  the  defendant  lay  upon 
the  east  side  of  the  mill  canal  or  reservoir,  while  the  mills  were 
all  on  the  opposite  side ;  and  it  may  be  inferred  from  the  opinion 
of  the  court  that,  had  there  been  no  extraneous  evidence  in  the 
case,  the  defendant's  conversance  would  have  carried  them  to  the 
center  of  the  canal.  It  may  be  stated,  however,  that  the  object 
called  a  "  mill  canal "  was  not  a  water-course^  either  natural  or 
artificial.  It  was  simply  an  artificial  structure  in  the  form  of  a 
canal,  into  which  water  was  taken  from  a  pond  created  by  dam- 
ming the  Oswego  river,  to  be  used  as  a  power.  It  had  no  outlet 
except  as  the  water  was  drawn  from  different  points  along  the 
westerly  side  of  it,  or  as  the  water  might  overflow  along  the  same 
side,  when  it  was  not  used  in  sufficient  quantities  to  prevent  the 
overflow.  It  is  doubtful,  therefore,  whether  the  same  presump- 
tion would  obtain,  in  such  a  case,  as  in  case  of  a  natural  or  artifi- 
cial water-course.  But  the  circumstances  clearly  negative  any 
presumption  that  it  was  the  intent  of  the  grantors  to  convey  to 
the  defendants  any  rights  in  the  canal,  and  those  circumstances 
were  very  properly  taken  into  consideration  by  the  court  in  giving 
construction  to  the  descriptive  words  of  the  conveyance. 

A  late  case  before  the  Court  of  Appeals  of  the  State  of  New 
York,  which  came  up  on  appeal  from  the  Superior  Court  of  the 
city  of  New  York,  involved  the  construction  of  two  deeds,  upon 
which  the  case  principally  turned.  The  action  was  ejectment  to 
recover  possession  of  a  quadrangular  lot  of  land  on  tlie  south-east 
corner  of  Bleecker  and  Grove  streets  in  the  citv  of  Xew  York. 


13G  LAW  OF  BOUNDARIES. 

being  about  seventeen  feet  one  inch  in  front,  running  back  about 
seventy-four  feet  ten  and  a  half  inches  on  both  sides,  and  being 
about  thirteen  feet  seven  and  three-fourths  inches  in  the  rear. 
The  premises  were  originally  in  1810,  and  prior  to  1837,  a  public 
higliway,  and  a  part  of  Grove  street,  which  was  north  of  the  ori- 
ginal city  of  New  York,  ?.nd  south  of  the  lands  laid  out  on  the 
commissioners'  map,  being  part  of  what  is  called  Greenwich  vil- 
lage. This  statement  seems  necessary  in  order  to  a  correct  under- 
standing of  the  questions  involved.  The  iirst  deed  calling  for 
construction  bounded  the  premises  "  northerly  by  Grove  street," 
but  contained  a  statement  of  the  dimensions  of  the  premises  coa- 
A'eyed,  which  could  he  obtained  without  taking  any  portion  of  the 
street.  The  court  held  that  this  deed  carried  the  grantee  to  the 
center  of  the  street,  laying  down  the  rule  that  where  a  convey- 
ance of  a  city  lot,  describes  it  as  bounded  on  a  street,  the  con- 
veyance vests  in  the  grantee  a  title  to  the  middle  of  such  street, 
subject  to  the  public  easement,  unless  there  is  evidence  of  an 
intent  to  exclude  the  street ;  and  that  a  statement  of  the  dimen- 
sions of  the  lot  is  not  sufficient  evidence  of  such  an  intention,  but 
that  such  statement  must  be  regarded  as  subordinate  to  and  con- 
tradicted by  the  previous  reference  to  the  street. 

Subsequent  to  the  conveyance  just  mentioned,  the  city  closed 
the  street  and  legally  appropriated  it  to  another  use ;  after  which 
the  owner  of  the  premises,  holding  under  the  last-mentioned  con- 
veyance, deeded  the  land,  describing  it  the  same  as  in  the  deed 
imder  which  he  held,  with  this  ditference,  that,  in  one  part,  the 
words  are  "  northerly  by  the  late  line  of  Grove  street,"  instead  of 
"  northerly  by  Grove  street ; "  but  the  deed  contained  the  state- 
ment that  the  premises  intended  to  be  conveyed  were  the  same  as 
were  conveyed  by  the  deed  under  which  the  grantor  held.  The 
court  decided  that  this  deed  did  not  carry  the  grantee  to  the  cen- 
ter of  the  late  Grove  street,  but  to  its  margin  only ;  holding  in 
general  terms  that  a  conveyance  of  a  lot  which  was  originally 
bounded  by  a  street,  made  after  that  portion  of  it  which  was  a 
street  has  been  legally  closed  and  appropriated  by  the  city,  describ- 
ing such  lot  as  bounded  by  the  late  line  of  such  street,  but  to  its 
margin  only;  and  tliat  a  reference  therein  to  tiie  deed  under  which 
the  grantor  derived  his  title  previous  to  tlie  change  in  the  street, 
as  being  the  same  premises  thereby  conveyed,  will  be  controlled 
by  the  specific  description.     In  respect  to  this,  Miller,  J,,  wha 


CONSTRUCTION'  OF  PARTICULAR    GRANTS.  137 

delivered  the  opinion  of  the  court,  observed :  "It  is  said,  that  the 
expressions  employed  will  be  presumed  to  refer  to  the  late  center 
line,  in  connection  with  the  words  after  the  description  '  along  and 
on  Grove  street.'  I  think  that  it  will  not  bear  this  interpretation. 
The  description  evidently  makes  a  distinction  between  the  old  line 
and  the  new  one,  and,  in  stating  a  line  for  a  boundary,  it  cannot 
well  be  said,  tliat  the  statement  of  itself  makes  the  center,  the 
line  "  {Sherman  v.  MoKeon,  38  N.  Y.  B.,  266,  272).  This  case 
is  of  obvious  importance,  not  only  as  showing  the  presumptions 
which  exist  in  respect  to  deeds  boimding  lands  upon  streets,  but 
also  as  showing  what  evidence  is  required  to  change  such  presump- 
tions. 

A  case  lately  came  before  the  Supreme  Court  of  the  State  of 
New  York,  involving  the  construction  of  a  deed  describing  the 
premises  intended  to  be  conveyed  as  200  acres,  more  or  less,  in 
the  right  of  Walton,  Kirby  and  Clopper,  in  lot  No.  1,  in  the 
twenty-fourth  allotment  of  the  patent  of  Kayaderoseras.  The 
court  held,  Kosekrans,  J.,  delivering  the  opinion,  that  the  descrip- 
tion contained  several  particulars,  and  that  no  lands  could  pass 
by  the  deed  except  such  as  corresponded  with  all  the  particulars ; 
and  further,  that  it  was  necessary  that  those  claiming  under  the 
deed  should  show  that  the  lands  claimed  were  in  lot  one,  and  in 
that  part  of  the  lot  to  which  the  right  of  Walton,  Kirby  and 
Clopper  extended.  That  if  such  right  included  more  than  200 
acres,  the  grantees  would  have  been  authorized  to  have  elected 
which  200  acres  in  the  tract  they  would  take,  and  such  election 
would  have  made  the  grants  operative,  although  the  description 
was  so  uncertain  that,  of  itself,  it  would  convey  nothing  {Flnlay 
V.  Cook,  54  Barh.  7?.,  9). 

In  a  recent  case  before  the  Superior  Court  of  the  city  of  New 
York,  the  question  arose  upon  a  deed  which  described  the  boundary 
of  a  city  lot  as  running  to  the  westerly  line  of  a  street ;  thence 
"  northerly  along  the  easterly  line  "  of  such  street.  The  question 
presented  was  as  to  whether  the  deed  carried  the  grantee  to  the 
center  of  the  street ;  and  the  court  held,  in  conformit_y  to  other 
authorities  upon  the  subject,  that  it  did  not;  in  other  words,  that 
such  a  deed  conveys  no  part  of  the  street  adjoining  the  lot  bounded 
upon  it  in  those  words  {Coster  v.  Peters,  5  Roh.  R.,  192).  And 
in  another  case  before  the  same  court  a  year  later,  the  descriptive 
language  of  a  conveyance  was  considered.  The  description  of 
18 


138  LAW  OF  BOUNDARIES. 

certain  premises  fronting  on  Greenwich  street,  and  not  on  Wash- 
ington street,  as  given  in  a  deed  thereof  by  a  grantor  who  owned 
land  extending  from  one  of  those  streets  to  the  other,  commenced 
at  a  fixed  point  on  Greenwich  street,  and  then  called  for  seven 
courses,  each  running  a  certain  and  definite  distance,  and  reaching 
a  certain  point  therein,  said  to  be  eighty-six  and  one-half  feet  or 
thereahouts  from  Washington  street.  The  court  held  that,  in  case 
they  were  not  identical,  the  indefinite  and  uncertain  point  indi- 
cated by  the  term  therecibouts,  must  give  way  to  the  more  definite 
and  certain  point  fixed  by  the  courses  and  distances  from  Green- 
wich street.  And  that  inasmuch  as  the  courses  and  distances 
from  Greenwich  street,  given  in  such  deed,  extended  both  the 
north  and  south  lines  of  the  premises  conveyed  to  points  nearer 
to  Washington  street  than  those  therein  stated  to  be  a  certain 
number  of  feet  or  thereahouts  from  the  latter  street,  they  must 
govern,  because  not  only  more  definite  and  certain,  but  more 
favorable  to  the  grantee  {Palton  v.  Stitt.,  6  Rob.  i?.,  431). 

In  1860,  the  Supreme  Oourt  of  the  State  of  New  York  passed 
"upon  a  deed  of  certain  lands  to  Mary  Berger,  dated  July  17, 1851, 
by  the  following  description  :  "  All  those  certain  nine  lots,  pieces 
or  parcels  of  ground,  situate,  lying  and  being  on  Mount  Prospect,  in 
the  ninth  ward  of  the  city  of  Brooklyn,  and  known  and  designated 
on  a  certain  map  of  151  lots  of  ground  on  Mount  Prospect,  Brooklyn, 
L.  I.,  made  by  Jeremiah  Lott,  surveyor,  and  dated  September  18, 
1833,  and  duly  filed  in  the  Kings  county  clerk's  ofiice  as  and  by 
numbers  140,  141,  142,  143,  144,  145,  147  and  148,  including  the 
land  adjoining  said  lots  to  the  center  of  North  street,  as  laid  down 
on  said  map,  subject  to  be  opened  as  a  public  street  whenever  the 
owners  of  a  majority  of  the  lots  fronting  thereon  shall  decide." 
The  lots  conveyed  were  bounded,  by  the  map  referred  to,  on  the 
west  by  the  Flatbush  turnpike,  but,  between  the  date  of  the  filing 
of  the  map  and  the  giving  of  the  deed,  the  location  of  the  turn- 
pike road  was  altered  by  the  proprietor,  so  that  at  the  time  the 
deed  was  given  an  addition  had  been  actually  made  to  the  lots  in 
question,  provided  the  lots  were  still  to  be  i-egarded  as  extending 
to  the  road  ;  and  the  question  presented  was  substantially  in 
respect  to  this  additional  land.  The  court  held,  in  the  first  place, 
that  the  map  referred  to  became  a  material  and  essential  part  of 
the  conveyance,  and  was  to  have  the  same  force  and  effect  as  if  it 
had  been  incorporated  into  the  deed.     And,  in  the  second  place, 


COI^STRUCTIOX  OF  PARTICULAR    GRANTS.  139 

that  as  the  lots  conveyed  by  the  map  were  bounded  on  the  west 
by  the  public  turnpike  road,  the  effect  of  the  deed  was  to  convey 
the  lands  up  to  the  turnpike  road,  as  that  existed  and  was  located 
at  the  date  of  the  deed;  and  that  the  true  boundary  was  to  Ije 
ascertained,  not  by  inquiring  where  the  east  line  of  the  turnpike 
road  was  on  the  18th  of  September,  1S33,  when  the  map  was  filed, 
but  on  the  17th  of  July,  1851,  when  the  deed  was  given ;  the 
idea  being  that,  as  the  line  of  the  turnpike  road  had  been  changed 
between  those  dates,  the  grantor,  if  lie  did  not  design  to  convey 
according  to  the  existing  state  of  things,  should  have  qualified  the 
force  of  the  description  on  the  map  by  an  intimation  of  the 
change  in  his  deed.  Brown,  J.,  who  delivered  the  opinion  of  the 
court,  said :  "  The  true  boundary  is  to  be  ascertained,  not  by 
inquiring  where  the  east  line  of  the  turnpike  was  on  the  18th  of 
September,  1833,  when  the  map  was  filed,  but  on  the  ITtli  of  July, 
1851,  when  the  deed  was  given.  How  can  it  be  otherwise?  The 
deed  contained  no  intimation  where  the  boundary  was,  but  referred 
to  the  map  for  that  purpose,  which  then  became  a  part  of  the  deed. 
The  map  bounded  the  lots  upon  the  westerly  side  by  the  Flatbush 
turnpike  road,  and  thus  the  grantor  adopted  the  line  of  the  road, 
as  it  then  was  located,  as  the  true  boundary.  Tliis  deed,  if  there  is 
any  uncertainty  in  the  description,  is  to  be  taken  most  strongly 
against  the  grantor,  and  construed  most  favorably  for  the  grantee. 
*  *  *  If  he  had  designed  to  limit  his  grantee  to  a  boundary 
short  of  the  line  of  the  road,  it  was  an  easy  thing  for  him  to  have 
put  the  limitation  in  the  deed,  or  qualified  the  force  of  the  descrip- 
tion on  the  map,  by  an  intimation  that  the  turnpike  road  had  been 
altered.  But  having  conveyed  by  the  map,  without  limit  or  quali- 
fication, and  that  paper  giving  the  road  as  the  western  boundary  of 
the  lots,  he  has  parted  with  the  title  up  to  that  line  as  efibctually 
as  if  he  had  given  the  road  as  the  boundary  b}''  express  words 
written  in  the  deed"  {Glover  y.  Shields,  32  Barh.  i?.,  374, 
379-381).  This  is  an  important  case,  and  fixes  a  rule  in  respect 
to  maps  referred  to  in  deeds  which  is  very  essential  to  be  remem- 
bered by  convej^ancers. 

In  a  comparatively  late  case  before  the  same  court,  involving 
the  subject  under  consideration,  the  description  in  a  deed  com- 
menced as  follows  :  "  Beginning  at  the  north-east  corner  of  lands 
owned  by  the  party  of  the  first  part,  and  by  the  line  fence  running 
from  thence  south  along  the  west  line  of  land  owned  by  the  party 


140  LAW   OF  BOUNDARIES. 

of  the  second  part."  Under  this  description  the  court  held  that, 
if  it  could  be  clearly  proved  that  such  north-east  corner  and  the 
fence  wei-e  several  chains  apart,  the  latter  would  be  the  true  start- 
ing point,  being  a  visible  and  tangible  object.  And  the  general 
rule  was  applied,  that  courses  and  distances  muse  yield  to  natural 
or  artificial  monuments  or  objects  {KaynevY.  Timersoti,  46  Bar-b. 
H.,  518;  vide  Thompson  v.  Wilcox,  7  Lans.  li.,  276). 

The  same  court  put  a  construction  upon  another  conveyance  in 
1864,  unlike  any  of  the  preceding  cases,  and  which  may  be 
regarded  as  somewhat  particular.  The  plaintiff  and  defendant 
were  the  owners  of  adjoining  lots,  the  plaintiff's  being  the  north 
and  the  defendant's  the  south  lot.  Both  parties  claimed  title  from 
the  same  sources,  the  plaintiff's  deed  being  the  oldest,  but  the 
defendant's  lot  had  been  previously  contracted  to  be  sold  to  one 
Ostrum,  who  was  then  in  possession  under  his  contract.  A  brick 
building  stood  on  the  plaintiff's  lot,  at  the  date  of  his  conveyance. 
The  description  in  the  plaintiff's  deed  was  as  follows :  "  Thence  con- 
tinuing the  same  course  along  the  front  of  said  building,  seventy- 
nine  feet  nine  inches,  to  the  corner  thereof,  being  the  north  line 
of  premises  contracted  to  J.  C.  Ostrum ;  thence  easterly  along  the 
south  side  of  the  h'ick  wall  of  said  building,  seventy-seven  feet, 
to  an  alley,"  with  a  reservation  to  the  grantor  of  "  the  free  and. 
uninterrupted  use  of  the  south  wall  of  the  Collins'  buildings,  for 
the  support  of  the  timbers  and  floors  of  the  store  and  building 
adjoining,  occupied  by  J.  C.  Ostrum,  as  the  same  is  now  used,  and 
the  nse  of  the  chimney  flues  in  said  wall,"  etc.  The  foundation 
wall  of  the  building  on  the  plaintiff's  lot,  on  the  north  side,  pro- 
jected about  six  or  eight  inches  beyond  the  south  face  of  the  brick 
wall.  The  plaintiff  claimed  that  his  deed  carried  him  to  the  south 
line  of  the  foundation  wall,  instead  of  the  south  line  of  the  hrick 
wall,  of  his  building,  and  the  question  for  the  court  was  as  to  the 
propriety  of  this  claim.  A  majority  of  the  court,  with  one  judge 
dissenting,  held  that  the  division  line  between  the  lots  mentioned 
in  the  plaintiff's  deed  was  intended  to  be  a  straight  line  from  the 
south-west  corner  of  the  huilding  to  the  rear  of  the  lot ;  and  tliat 
the  terms  "  corner  of  the  building,"  and  "  along  the  south  side  of 
the  brick  wall,"  clearly  limited  the  plaintiff's  south  line  to  the 
outer  surftice  of  the  brick  wall ;  and  that  therefo)-e  the  plaintiff 
had  no  title  to  the  strip  of  land  in  suit.  The  case  was  ably  argued 
by  Johnson,  J.,  who  gave  the  prevailing  opinion  of  the  court,  who 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  141 

declared  that,  in  his  judgment,  the  conclusion  arrived  at  was 
clearly  to  be  gathered  from  the  terms  of  the  description  in  the 
plaintiffs  deed  alone.  Welles,  J.,  concurred  with  Johnson,  J,, 
and  J.  C.  Smith,  J.,  dissenting,  but  with  no  opinion,  and  the  case 
does  not  seem  to  have  been  again  before  the  courts  {Comes  v. 
Minot,  42  Barh  B.,  60). 

A  couple  of  years  later,  a  case  came  before  the  same  court 
requiring  the  interpretation  of  the  description  contained  in  a  con- 
tract, wherein  the  land  sold  was  described  as  a  lot  bounded  "  on 
the  east  by  the  cove,"  and  also  as  "  being  the  east  part  of  lot 
number  twenty-one,"  on  a  certain  map,  made  by  one  Webb.  Ths 
cove  referred  to  was  made  by  the  water  which  sets  back  from  the 
Chemung  river,  and  the  question  was,  whether  this  description 
embraced  the  land  on  the  east  side  of  the  parcel  described  to  the 
edge  of  the  water  of  the  cove,  or  whether  it  extended  only  to  the 
east  line  of  the  lot  number  twenty-one,  as  laid  down  on  the  map. 
The  court  held  that  the  cove  being  mentioned  in  the  contract  as 
the  east  boundary  of  the  land  sold,  it  could  not  be  controlled  or 
changed  by  the  reference  in  the  contract  to  the  map  made  by 
Webb,  or  by  the  east  line  of  lot  number  twenty-one,  as  laid  down 
on  that  map;  and  it  was  said  by  Balcom,  J.,  who  delivered  the 
opinion,  that  it  was  immaterial  whether  that  lot  extended  as  far 
east  as  the  cove  or  not,  or  whether  any  portion  of  such  lot  Liy 
within  the  boundaries  mentioned  in  the  contract;  that  these 
boundaries  being  marked  by  known  and  certain  monuments  must 
control  in  construing  the  contract.  These  monuments  were 
visible,  and  the  parties  undoubtedly  understood  that  lot  number 
twenty-one  embraced  all  the  land  within  them ;  and  the  fact  that 
such  lot  did  not  extend  to  the  east  boundary  mentioned  in  the 
contract  was  not  regarded  as  controlling,  and  should  not  prevent 
the  description  from  extending  to  the  west  edge  of  the  water  con- 
Btituting  the  cove,  and  the  description  was  so  construed  by  the 
20urt  {Jones  v.  Holstein,  47  Barh.  R.,  311). 

The  Court  of  Appeals  of  the  State  of  New  York,  in  1861,  gave 
a  construction  to  a  deed  of  land  described  by  the  lot  number  upon 
a  map  sijnply.  The  owner  of  one-half  of  a  block  of  land  in  the 
city  of  Rochester,  which  block  was  surrounded  on  all  sides  by 
streets  opened  and  used  as  highways,  caused  his  portion  of  the 
block  to  be  surveyed  and  subdivided  into  lots,  and  a  map  to  be 
made  representing  such  lots  as  abutting  upon  a  street  extending 


142  ■    LAW  OF  BOUNDARIES. 

from  Kent  street,  one  of  tlie  boundaries  of  his  tract,  through 
the  center  thereof,  and  also  through  the  land  of  adjoining  proprie- 
tors, to  another  publicly  traveled  street.  This  proposed  avenue 
was  designated  on  the  map  as  Erie  street,  and  lots  were  sold,  and 
the  lots  described  in  the  deeds  in  this  manner :  "  Lot  Ko.  I,  section 
G,  according  to  allotment  and  survey  of  part  of  Frankfort  [a  por- 
tion of  Rochester  including  the  tract  in  question]  ,  made  by  Elisha 
Johnson ;  said  subdivision  being  thirty-three  feet  front  and  rear, 
seventy  feet  deep ;"  but  without  any  mention  of  or  reference  to 
this  Erie  street  by  name ;  and  the  depth  of  the  lot  was  stated  by 
figures  on  the  map,  which  would  not  include  any  portion  of  the 
street.  The  question  presented  for  adjudication  in  the  case  was 
Avhether  the  deeds  conveying  these  lots  on  either  side  of  Erie  street, 
in  the  city  of  Rochester,  before  such  street  became  a  public  high- 
way, and  was  opened  as  such,  carried  the  lands  to  the  center  of 
that  street.  The  Supreme  Court  held  that  they  did  not;  but  the 
Court  of  Appeals  reversed  the  judgment,  holding  that  the  grantor 
had  dedicated  such  street  as  between  him  and  his  grantees; 
although  his  map  represented  it  as  continuing  through  the  land  of 
an  adjoining  proprietor,  M'hich  closed  it  against  any  highway  in  one 
direction ;  and  such  adjoining  proprietor  never,  in  any  manner, 
assented  to  the  continuation  of  the  proposed  street,  nor  was  any 
part  of  the  street  adopted  as  such  by  the  public  authorities.  It 
was  accordingly  held  by  the  Court  of  Appeals  that  the  grantee  of 
all  the  lots  on  both  sides  of  the  street  thus  designated  was  entitled 
to  the  exclusive  possession  of  the  proposed  street  against  eject- 
ment by  the  grantor.  The  doctrine  of  the  case  is  that,  as  between 
grantor  and  grantee,  the  conveyance  of  a  lot  bounded  upon  a 
street  in  a  city  carries  the  land  to  the  center  of  the  street ;  and 
that,  as  between  the  same  parties,  the  same  rule  applies,  where 
the  conveyance  bounds  the  land  upon  a  street  not  recognized  by 
the  public  authorities  nor  opened,  but  is  only  a  street  by  being 
laid  doMm  on  the  map  as  such,  which  was  made  by  the  grantor, 
and  according  to  which  the  conveyance  is  expressly  made.  That 
is  to  say,  the  rule  of  construction  in  such  case  is  the  same,  as 
regards  the  parties  to  the  deed,  as  though  the  street,  laid  down  on 
the  grantor's  map,  was  in  fact  a  public  street,  opened  and  used  as 
such  {Bissell  v.  The  New  York  Central  Railroad  Company,  23 
N.  Y.  R.,  61). 


CONSTRUCTIOy   OF  PARTICULAR    GRANTS.  143 

Several  years  later  another  case  came  before  the  same  court, 
-calling  for  tlie  coustriiction  of  a  deed  which  bounded  the  land  by 
a  "  park."  This  was  an  action  also  involving  tlie  right  to  a  strip 
of  land  in  the  city  of  Rochester.  The  plaintiff  was  the  owner  of 
a  small  tract  of  land  in  that  city  in  18-19,  which  he  caused  to  be 
plotted  and  divided  into  lots  numbered  from  one  to  thirty-six,  and 
caused  the  map  to  be  filed  in  the  Monroe  county  clerk's  office. 
An  oi^en  space  was  designated  on  the  map,  fronting  upon  what 
was  laid  down  as  "  James  street "  on  one  side,  and  bounded  on  the 
other  three  sides  by  nine  of  said  lots,  and  described  as  "  Park." 
The  plaintiff  conveyed  these  nine  lots,  at  different  times,  to  difier- 
ent  purchasers,  describing  them  in  each  conveyance  solely  by  their 
numbers,  and  by  reference  to  said  map  and  its  place  of  record. 
Several  of  the  lots  hav^e  no  means  of  approach  by  any  public 
street  or  private  way,  except  tlirough  the  space  designated  as 
"Park;"  and  the  question  presented  was  whether  the  plaintiff,  in 
conveying  the  nine  lots  wliich  abutted  on  the  strip  called  "Park," 
by  numbei-s,  referring  to  the  map,  passed  the  fee  in  this  strip  to 
the  grantees,  in  the  same  manner  and  to  the  same  extent  as  if  the 
strip  of  land  had  been  dedicated  by  him  as  a  street  for  the  use  of 
the  adjoining  lots.  The  Supreme  Court,  in  which  the  action  was. 
commenced,  held  that  tlie  well-settled  rule  in  respect  to  bonndary 
upon  streets  did  not  apply  to  this  strip  of  land  called  "Park;" 
declaring,  as  matter  of  fact,  that  when  the  plaintiff'  plotted  this 
tract  he  intended  the  space  designated  as  "  Park  "  to  be  a  park, 
and  not  to  be  a  mere  passageway,  leading  by  and  to  the  adjoining 
lots,  and  that  sncli  continued  to  be  his  inteniion  when  he  sold  the 
lots  ;  that  part  of  his  design  was  to  afford  access  to  the  contiguous 
lot ;  but  that  this  was  subordinate  to  the  principal  and  leading 
object  of  making  it  a  park.  But  on  appeal  to  the  Court  of  Appeals 
the  judgment  of  the  Supreme  Court  was  reversed,  two  of  the 
judges  dissenting;  the  majority  holding,  as  law,  that  the  primary 
and  chief  design  in  laying  down  this  space  on  the  map  called 
"  Park,"  and,  so  far  as  the  case  showed,  its  only  design  was  that 
the  same  should  be  used  as  a  passageway  or  street ;  that,  although 
called  a  park,  it  was  not  a  park,  and  its  intended  use  as  a  street 
was  beyond  question.  The  doctrine  laid  down  by  the  Court  of 
Appeals  in  the  case  is  that,  where  town  lots  are  sold,  and  described 
only  by  numbers  on  the  recorded  map  by  which  they  appear  to 
be  bounded  on  a  public  street  or  highway,  such  lots  are  to  be 


144  LAW  OF  BOUJSDARIES. 

bounded  Ly  the  center  of  such  street.  And  where  the  open  space 
on  the  map,  by  which  only  such  lots  can  be  approached,  is  desig- 
nated as  "  Park,"  it  is,  nevertheless,  to  be  deemed  as  a  designed 
means  of  access  to  such  lots,  and  they  are  to  be  bounded  by  the 
center  of  such  space.  It  was  further  declared  that  these  questions 
of  boundary  are  to  be  determined  by  the  palpable  intention  of  the 
parties,  as  it  appears  from  all  the  circumstances. 

Hunt,  J.,  delivered  an  able  dissenting  opinion,  in  the  course  of 
which  he  said:  "A  park  is  essentially  different  in  its  nature  from 
a  street,  and  is  governed  by  pi'inciples  of  a  different  character.  It 
could,  under  no  circumstances,  be  considered  as  a  line  merely. 
A  street  becomes  a  street,  as  between  grantor  and  grantee,  by 
being  so  designated  on  the  map  by  which  the  lots  are  sold.  It  is 
quite  likely  that  a  park  may  become  a  park  in  the  sam-e  manner. 
But  there  is  neither  authority  or  principle  for  saying  that  lands 
may  be  made  a  street  by  designating  them  as  a  park.  It  would 
be  as  unreasonable  as  to  attempt  to  create  a  park  from  what  the 
owner  should  designate  upon  liis  map  as  a  street."  But  it  was 
declared  in  the  prevailing  opinion  that  a  park  is,  in  its  strict  sense, 
a  piece  of  ground  inclosed  for  purposes  of  pleasure,  exercise,  amuse- 
ment or  ornament ;  that  this  strip  was  uninclosed  —  open  to  the 
common  —  and  was  intended  so  to  remain ;  nor  was  it  set  apart, 
either  for  pleasure-ground  or  for  purposes  of  exercise,  amusement 
or  decoration  ;  and,  hence,  for  the  purposes  of  the  case,  it  must 
be  regarded  as  a  passageway  or  street  {Perrin  v.  The  New  York 
Central  Railroad  Co^njxmy,  36  iT.  Y.  E.,  120,  124,  125). 

In  1861  a  case  came  before  the  Superior  Court  of  the  city  of 
New  York,  calling  for  the  construction  of  certain  lanffuaffe  in  a 
conveyance,  wherein  the  land  was  described  as  running  "  to  the 
side"  of  the  road,  and  thence  "along  the  side  of  the  road."  The 
question  presented  was  whether  the  boundary  extended  to  the 
center  of  the  said  road,  or  only  to  the  edge ;  and  the  court  held 
that  the  description  excluded  the  road  from  the  conveyance  (  Van 
Amringe  v.  Barnett,  8  JBo-sw.  It.,  357). 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  145 


CHAPTER  XII. 

FURTHER   CASES    PASSED  UPON   BY  THE   COURTS   GIVING  CONSTRUCTION 

TO    PARTICULAR    CONVEYANCES    IN    RESPECT   TO    BOUNDARY CASE3 

MISCELLANEOUSLY    STATED. 

An  important  case  in  the  Court  of  Appeals  of  the  State  of  Kew 
Yo]-k,  hereinbefore  referred  to  in  a  different  connection,  may,  with 
propriety,  be  alhided  to  again,  on  account  of  the  precedent  it 
affords  upon  the  question  of  construing  the  descriptive  language 
of  a  conveyance  of  lands.  The  deed  brought  before  the  court  for 
construction  described  the  land  intended  to  be  conveyed  as  bounded 
by  the  road  leading  from  Jamaica  and  Flatbush  to  the  Brooklyn 
ferry.  The  court  held,  from  the  evidence  in  the  case,  that  the 
grantor  in  the  deed  had  title  to  the  land  conveyed  only  to  the 
margin  of  the  road ;  and  the  question  presented  was  whether  his 
deed,  under  the  circumstances,  should  be  construed  as  carrying 
the  grantee  to  the  center  of  the  road.  The  Supreme  Court,  where 
the  cause  was  tried,  held  that  the  conveyance  extended  to  the 
center  of  the  road;  but  the  Court  of  Appeals  reversed  the  judg- 
ment, holding  that,  although  the  deed,  ^m?ia /acie,  carried  the 
grantee  to  the  center  of  the  road,  on  the  assumption  that  the 
grantor  owned  it,  but  when  it  was  shown  that  this  title  to  the 
road-bed  was  in  another  at  the  time  of  the  conveyance,  the.  terms  of 
the  deed  were  satisfied  by  a  title  extending  to  the  roadside  {Dun- 
ham V.  Wilkins,  37  iV.  Y.  i?.,  251). 

A  very  recent  case  before  the  same  court  further  illustrates  the 
principles  upon  whicli  the  descriptive  language  in  a  deed  is  con- 
strued, and  the  manner  in  which  the  construction  will  be  modified- 
by  circumstances.  According  to  the  memorandum  published  by 
the  reporter,  the  conveyance  was  for  a  portion  of  a  lot  in  the  citj^ 
of  Rochester,  the  west  boundary  of  which  was  giv^en  as  "  the  east 
line  of  Clyde  street."  The  plaintiff's  deed  conveyed  to  him  the 
north  half  of  the  lot,  and  also  the  northerly  half  of  a  dwelling- 
house  situate  thereon,  described  as  "fronting  on  Clyde  street," 
with  the  land  on  which  it  stood,  "being  about  sixteen  feet  square,, 
with  the  appurtenances."  The  south-west  corner  of  the  north 
half  of  the  house  projected  about  seven  feet  upon  the  south  half 
of  the  lot.  The  defendant's  deed  conveyed  to  him  the  south  half 
19 


146  LAW  OF  BOUNDARIES. 

of  the  lot,  excepting  and  reserving  therefrom  the  land  upon  which 
the  plaintitf's  half  of  the  dwelling-house  stood.  At  the  date  of 
the  deeds  the  west  side  of  the  house  was  upon  the  east  line  of 
Clyde  street,  as  opened  and  used.  Subsequently  the  city  authori- 
ties changed  the  street,  running  the  east  line  thereof  to  the  west- 
ward four  feet  ten  inches.  The  plaintiff  took  possession  and 
inclosed  the  space  thus  left  in  front  of  his  half  of  the  house.  The 
defendant  tore  down  the  fence,  claiming  title  as  far  north  as  the 
north  line  of  the  south  half  of  the  lot,  and  the  plaintiff  brought 
suit  for  the  trespass.  Under  these  circumstances,  the  question  was 
presented  as  to  the  construction  to  be  put  upon  the  conveyances 
of  the  respective  parties.  The  Court  of  Appeals  held  (affirming 
the  decision  of  the  Supreme  Court)  that  the  original  title,  and  the 
right  of  possession  of  the  parties,  as  derived  therefrom,  extended 
no  farther  west  than  the  east  line  of  Clyde  street,  as  it  then  was. 
Further,  that  the  language  of  the  description  in  the  plaintiff's 
deed  carried  his  right  to  the  center  of  the  street ;  and  when  the 
public  abandoned  its  easement  the  plaintiff  became  entitled  to  the 
exclusive  use  of  that  part  of  the  street  abandoned,  adjacent  to  and 
in  front  of  his  half  of  the  house.  Andrews  and  Rapallo,  JJ.,  con- 
curred in  the  conclusion,  but  placed  their  decision  upon  the 
ground  that  the  plaintiff  was  in  possession  of  the  locus  in  quo,  and 
the  defendant  had  shown  no  title ;  leaving  it  to  be  inferred  that 
they  did  not  assent  to  the  construction  which  the  majority  of  the 
court  put  upon  the  plaintiff's  conveyance.  The  case,  however, 
has  full  authority  as  a  precedent  (  Wallace  v.  Fee,  50  iV^.  Y.  12., 
69dt). 

Another  case  in  the  same  court  was  this :  An  owner  of  land 
upon  a  mill  stream,  ad  medium  Jllum  aquae,  conveyed  a  parcel  of 
land  by  metes  and  bounds,  "  beginning  at  a  stake  and  stones  on 
the  west  bank  of  the  Unadilla  river ;"  running  thence  by  coui-ses 
and  distances  around  the  farm  until  it  comes  again  "  to  the  Una- 
dilla river,"  and  runs  "  thence  down  the  west  bank  of  the  Una- 
dilla river,  as  it  winds  and  turns,  to  the  place  of  beginning."  The 
question  in  the  case,  so  far  as  the  subject  under  consideration  is 
concerned,  was  wliether  the  grantee,  under  this  conveyance,  took 
to  the  center  of  the  river;  and  the  court  held  that  he  did  not. 
On  the  contrary,  tliat  the  title  to  tlie  river,  and  the  land  covered 
'by  it,  remained  in  the  grantor.  Henry  R.  Sclden,  J.,  who  delivered 
;the  opinion  of  the  court,  said,  on  this  point :  "  The  words  '  to  the 


COXSTRUCTIOX  OF  PARTICULAR    GRAXTS.  147 

Unadilla  river,'  according  to  the  usual  interpretation  of  such  an 
expression  in  conveyances,  would  carry  the  line  to  the  center  of 
the  river;  as  the  general  rule  is  that,  where  a  line  touches  a  river, 
it  goes  to  the  center ;  but  the  words  are  entirely  consistent  with 
an  interpretation  which  should  stop  the  line  at  the  margin  or  bank 
of  the  river;  and  whether  the  one  or  the  otlier  interpretation 
should  be  given  to  them,  must  depend  upon  the  apparent  inten- 
tion of  the  parties,  to  be  determined  by  reference  to  tlie  other 
portions  of  the  deed. 

"  The  other  expressions  of  the  deed,  which  have  reference  to  the 
river,  I  think  show  a  clear  intention  to  limit  the  operation  of  the 
grant  to  the  bank  of  the  river.  The  starting  point  is  unequivo- 
cally from  'the  bank,'  and  not  from  the  center  of  the  river;  and 
if  tiie  last  line  in  the  description  is  confined  to  the  center  of  the 
river,  it  cannot  run  '  to  the  place  of  beginning,'  as  the  description 
requires ;  and  if  it  starts  from  the  center  of  the  river,  and  runs 
'  to  the  place  of  beginning,'  it  would  neither  follow  the  center 
of  the  river  nor  'the  west  bank  as  it  winds  and  turns,'  according 
to  the  description  of  the  deed.  From  the  terms  of  the  deed  alone 
I  think  it  must  be  held  to  convey  the  farm  to  the  west  bank  of 
the  river  only,  leaving  the  title  to  the  river  and  the  land  covered 
by  it  in  the  "grantors  "  {BabeocTc  v.  Utter,  32  How.  Pr.  7?.,  439, 
453,  454;  S.  \  1  Keyes  li.,  397). 

A  case  came  before  the  present  Supreme  Court  of  the  State  of 
:N"ew  York,  at  an  early  day,  involving  the  question  of  boundary 
of  lands  lying  upon  a  stream  or  river  not  navigable.  The  land 
claimed  was  the  north  half  of  the  stream  and  falls  in  the  Esopus 
creek,  at  a  place  called  "Demeyer's  Falls."  By  the  description 
in  the  deed  under  which  the  claim  was  made,  the  boundary  line 
ran  "  to  the  said  Esopus  kill  or  river  ;  thence  southerly  along  the 
said  river  by  a  piece  of  land  of  Ilendrick  Alberse,and  by  his 
bounds  to  said  river ;  thence  along  the  said  kill  or  river  to  the 
creek  brook  where  first  began."  The  court  held  that  this  deed 
carried  the  grantee  to  the  center  of  the  stream,  and  declared  that 
the  law  was\vell  established  that,  where  lands  are  bounded  by  a 
stream  or  river  not  navigable  or  above  tide-water,  the  grantee 
takes  iisque  filum  aq^um,  unless  the  stream  or  river  be  expressly 
excluded  from  the  grant  by  the  terms  of  the  deed.  And  it  was 
further  declared  that,  in  the  case  before  the  co^rt,  no  proof  was 
needed,  in  terms,  as  the  stream  was  not  navigable  or  above  tide- 


148  LAW  OF  BOUNDARIES. 

water ;  the  tact  sufficiently  appearing  from  the  existence  of  the 
fall  and  dam,  and  the  uses  to  which  they  were  applied  {Demeyer 
V.  Legg.,  IS  Barh.  H.,  14).  And  the  Court  of  Appeals,  of  the 
same  State,  at  a  more  recent  date,  passed  upon  a  similar  descrip- 
tion in  a  deed,  and  gave  a  similar  decision.  The  boundary  in  the 
deed  began  "  at  a  post  marked  No.  0,  standing  on  the  bank  of 
Lake  Erie,  at  the  mouth  of  Cattaraugus  creek,  and  on  the  north 
bank  thereof;"  and  then  run  by  several  courses  and  distances,  and 
returned  to  a  post  also  "  standing  on  the  north  bank  of  Cattarau- 
gus creek  ;  thence  down  the  same,  and  along  the  several  meanders 
thereof,  to  the  place  of  beginning."  It  appeared  that  this  bound- 
ary crossed  the  creek  three  times  before  reaching  the  last  course 
but  one,  and  that  course  and  distance  carried  the  boundary  across 
the  creek  for  the  fourth  time.  The  question  in  dispute  was 
whether  the  last  course  of  the  boundary  carried  the  grantee  to  the 
center  of  the  creek,  or  only  to  the  bank ;  and  tlie  Court  of  Appeals, 
overruling  the  judgment  of  the  Supreme  Court,  held  that  the 
description  included  the  bed  of  the  stream  to  tlie  center.  Corn- 
stock,  Cli.  J.,  who  gave  the  opinion,  said  :  -"In  this  case  the  bound- 
ary begins  at  a  post  standing  on  the  north  bank  of  the  creek,  and 
it  returns  to  a  post  also  standing  on  the  'north  bank  of  Cattarau- 
gus creek;'  and  proceeds  'thence  down  the  same,  and  along  the 
several  meanders  thereof,  to  the  place  of  beginning.'  On  the  part 
of  the  defendant  it  is  claimed  that '  down  the  same,'  in  this  descrip- 
tion, means  down  the  bank,  and  not  down  the  creek.  But  we 
think  this  is  not  tlie  fair  construction  of  the  language.  The  words 
more  obviously  refer  to  the  creek,  which  is  the  immediate  antece- 
dent, than  the  bank.  And,  again,  the  phrase,  'along  the  mean- 
ders thereof,'  is  more  descriptive  of  the  windings  of  the  stream 
than  of  the  irregularities  or  sinuosities  of  the  bank.  Indeed,  this 
word  '  meander '  is  derived  from  a  winding  river  in  Asia  Minor, 
known  by  that  name  in  classic  history.  And,  in  our  language, 
we  say  that  a  stream  meanders  ;  but  I  think  M'e  never  speak  thus 
of  a  shore.  To  speak  of  a  meandering  shore  would  be  to  use  a 
singularly  inapt  expression.  It  may  well  be  added  that  a  strictly 
shore  line  upon  a  river  would,  in  most  cases,  be  extremely  diffi- 
cult to  trace.  Parties  may  so  restrict  their  grants  if  they  Avill ; 
but  the  restriction  ought  to  be  framed  in  very  plain  and  express. 
words"  {The  Seneca  JVaiio)i  of  Indians  v.  Knight,  23  iV.  Y.  R 
498,  500). 


COXSTRUCTIOX  OF  PARTICULAR    GRANTS.  149 

A  very  important  case  was  disposed  of  by  tlie  present  Supreme 
Court  of  the  State  of  New  York  in  1864,  involving  the  construction 
of  the  description  in  deeds  bounding  lands  upon  streets  in  a  city. 
The  descriptive  language  in  several  different  parts  was  considered, 
but  it  is  only  necessary  to  repeat  the  description  in  one.    The  action 
related  to  a  strip  of  land  two  rods  in  width  and  ninety-nine  feet  in 
length,  and  being  the  north  half  of  a  certain  portion  of  Green 
street  in  the  city  of  Lockport.    The  plaintiff  claimed  under  a  convey- 
ance  of  lots   205  and  207,  which,   after  referring   to   the   map, 
bounded  them  on  the  east  by  Lock  (formerly  West  Front.)  street 
sixty-six  feet,  and  "  on  the  south  on  Green  street  ninety-nine  feet, 
and  being  in  a  body  in  the  corner  of  Lock  street  and  Green  street, 
containing  more  or  less,  according  to  the  aforesaid  map,  reference 
being  thereunto  had."     The  strip  of  land  was  a  part  of  three  lots, 
provided  this  deed  extended  to  the  center  of  Green  street ;   and 
the  court  held  that  it  did  ;    and  the  doctrine  was  reiterated,  that  if 
it  is  the  intention  of  the  grantor,  who  conveys  lots  having  streets 
along  them,  to  exclude  tlie  streets,  his  description  must  be  clear 
and  certain,  showing  such  intention  {Lozier  v.   The  New  York 
Central  Railroad  Company,  42  Barh.  R.,  465).     A  case  came 
before  the  same  court  at  a  little  earlier  day,  calling  for  the  con- 
struction of  a  deed  bounding  the  land  upon  one  of  the  streets  of 
tlie  city  of  New  York.     The  premises  were  described  in  the  deed 
as   "beginning  at  the  corner  formed  by  the  intersection  of  the 
easterly  line  of  Greenwich  street  with  the  northerly  line  of  Cham- 
bers street,  109  feet  to  the  said  easterly  line  of  Greenvyich  street, 
and   thence  southwardly  along  the  same,   seventy-nine  feet  and 
eight  inches  to  the  place  of  beginning."     The  court  held  that  this 
description  bounded  the  grantees  to  the  easterly  line  of  Green- 
wich street,  and  did  not  carry  them  to  the  center  of  the  street. 
The  well-understood  doctrine,  however,  was  expressly  recognized 
by  Hogeboom,  J.,  who  delivered  the  opinion  of  the  court,  that  a 
description,  bounding  premises  generally  on  or  hj  a  street  or  high- 
way, or  stream  of  water  not  navigable,  unexplained,  carries  the 
boundary  to  the  center  of  the  street  or  highway,  or  stream  of 
water,    and   reference  is   made   to  Hammond  v.  McLachlan  (1 
Sand.  R.,  323),  Herring  v.  Fisher  {lb.,  344),  Jackson  v.  Louw  (12 
Jolms.  R.,  252),   Jackson  v.  Hathaway  (15  il.,  447),  Adams  v. 
Saratoga  and  Washington  Railroad  (11  Earl.  R.,  414),  Adams 
V.  Rivers  {Ih.,  390),  Demeyer  v.  Legg  (18  ih.,  14),  Ex  parte  Jen- 


150  ^"^^^  ^^  BOU.XDAEIES. 

nings  (6  Coio.  R.,   518),  People  v.  Seymour  {II.,  579),  Canal 
Appraisers  v.  People   (17  Wend.   P.,    571),    Commissioners  of 
Canal  Fund  v.  Kempshall  (26  /J.,  404),  Luce  v.  (7«?'%  (24  ib., 
451),   as  authority  for  the  doctrine.     But  the  judge  referred  to 
Child  V.  Starr  {HilVs  P.,  369),  Kingman  v.  Sparrotc  (12  ^ar^. 
i2.,  201),   Ralsey  v.  McCormich  (13  iV^.  y.  ^.,  296),   J'wi^s  v. 
Cowman  (2  Sandf.  P.,  235),  as  authority  for  holding  that  this 
description  in  the  conveyance  before  the  court  did  not  carry  the 
gi-antees  to  the  center  of  tlie  street,  but  only  to  the  outer  line 
tliereof  {^Veimore  v.  Law,  34  Barh.  P.,  515,  519,  520).     But  at 
the  same  term  of  the  court  another  conveyance  came  before  it  for 
construction,  wherein  the  land  was  described  as  "  situate,  lying 
and  being  on  the  westerly  side  of  Greenwich  street,"  and  the  east- 
erly boundary  therein  was  stated  as  follows :    "  bounded  easterly 
in    part    by    Greenwich     street     aforesaid."      It    was     further 
described  as  "  containing  in  front  on  Greenwich  street  aforesaid, 
twenty-four  feet  ten  inclies,"  "  and  in  lengtli  on  the  northerly  side, 
sixty-one  feet  six  inches."     And  the  court  held,  the  same  judge 
writino-  the  opinion,  that  this  description  extended  tlie  title  to  the 
middle  of  the  street,  according  to  the  general  rule  applied  in  respect 
to   property  having   similar  boundaries.     In  his  opinion.   Judge 
Hofjeboom  observed  :    "  It  is  conceded  to  be  the  rule  as  to  land  in 
the  country,  and  I  think  it  equally  applies  to  urban  territory.     * 
*     "     The  reason  is  substantially  the  same  as  applied  to  a  road 
in  the  country  or  a  street  in  tlie  city ;   that  is,  the  intervening 
strip  was  originally  taken,  or  supposed  so  to  be,  for  public  pur- 
poses, from  the  owners  on  opposite  sides  of  the  street  or  highway, 
taken  only  for  public  purposes,  and  only  so  much  of  it  both  in 
regard  to  the  quantity  and  duration  of  the  estate  as  was  supposed 
to  be  required  for  the  public  use,  and  is  to  be  returned  to  the  respec- 
tive proprietors  when   the  public  have  no  farther  use  for  it;  or 
else  it  was  founded  upon  principles  of  public  policy,  based  upon 
the  supposed  inconvenience  or  impropriety  of  having  so  long  and 
narrow  a  strip  of  land  or  body  of  water  the  subject  of  a  distinct 
and   separate  ownership  from   that  of  the   adjoining  territory  on 
either  side.     In  other  words,  the  owners  of  the  adjoining  lands 
have  the  entire  property  in  the  land,  subject  to  the  public  ease- 
ment and  rights.     It  may  be  true  that,   as  regards  lands  in  the 
city,  the  use  of  the  public  is  more  extended  and  comprehensive 
than  in  the  country.     It  is  wanted  not  only  as  a  road  for  purposes 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  151 

of  passage  and  transportation,  but  also  for  sewers,  for  vaults,  for 
gas-pipes,  for  water-pipes,  and  other  purposes.     But  the  essential 
characteristic  of  both  is  tlie  same,  to  wit,  the  public  use  or  neces- 
sity.    So  also  the  country  may  ultimately  become  a   town,  the 
town  may  become  a  city;   and  it  would  lead  to  embarrassment  if 
different'rules  of  construction  were  applied  to  comdry  and  to  the 
city  grants,  as  well  as  to  difficulty  in  determining  when  the  actual 
transmutation  from  country  to  city  property  took  place.     Whether, 
therefore,  we  consider  the  question  as  one  of  naked  law  upoii  the 
construction  to  be  given  to  a  legal  instrument,  or  as  a  rule  of  evi- 
dence to  be  applied  to  those  instruments  for  the  purpose  ot  ascer- 
tainino-  the  real  intentions  of  the  parties,  I  think  the  result  will  be 
the  same"  {The  People  v.  Lcm,  34  Barh.  7?.,  434,  501,  502). 
This  case  is  important  not  only  as  a  precedent  in  cases  where  the 
boundary  in  a  deed  extends  to  the  center  of  a  street  or  highway, 
but  also  as  giving  reasons  why  the  same  rule  of  construction 
should  be  applied  to  city  grants  as  to  grants  of  land  in  the  country. 
It  is  well  settled  that  the  rule  in  respect  to  land  in  the  country 
will  be  applied  to  urban  territory,  but  the  reasons  why  the  sup- 
posed distinction  in  such  cases  should  not  be  recognized,  are  given 
with  sucli  pertinancy  and  plainnesss,  that  it  will  not  be  amiss  to 

note  them. 

And  the  same  court  was  called  upon,  at  a  much  later  date,  to 
construe  the  descriptive  words  in  a  conveyance,  where  the  boundary 
was  a  range  of  hills.     The  grant  was  for  a  parcel  of  land  in  the  old 
township  W  Rochester,  situate  "on  the  south-east  side  of  the  high 
hills,  commonly  called  the  Shawangunk  hills."     The  only  bound- 
arv  necessary  to  notice  was  in  these  words  :  "  Tlience  runs  south- 
westerly along  the  top  of  the  said,  hills  on   the  south-east  side 
thereot;  on  the  highest  part  of  the  steep  rocks  that  point  north  to 
Shawangunk  aforesaid,  as  the  rocks  range,"  etc.     It  was  held  tliat 
the  court  was  not  at  liberty  to  conjecture  that  the  parties  to  the 
deed  intended  to  establish  the  boundary  upon  a  lower  elevation, 
upon  the  side  of  the  designated  hills;  and,  as  the  rocks  ot  the 
range  mentioned  were  objects  which  were  definite  and  could  be 
fixed  with  reasonable  certainty,  a  variation  in  the  coxirse  ot  the 
line  was  not  to  be  regarded,  but  the  true  boundary  was  tlie  line 
alono-  the  highest  point  of  the  steep  rocks  as  they  ranged  upon  the 
summit  of  the  mountain  as  it  fronts  the  valley  {Sclwonviaker  v 
Davis,  44  Barl).  E.,  463). 


152  L^W  OF  BOUNDARIES. 

A  case  came  before  the  New  York  Court  of  Appeals,  not  long 
since,  involving  the  construction  of  a  conveyance,  which  it  may 
be  of  interest  to  notice.  The  language  calling  for  construction  in 
the  description  was  this  :  "  All  that  certain  piece  or  parcel  of  land 
situate  in  the  said  town  of  Niagai-a,  being  tlie  west  jpart  of  lot 
.No.  76,  lying  on  the  easterly  side  of  the  Niagara  river,  contain- 
ing eighty-live  acres,  be  the  same  more  or  less."  On  the  one  side  it 
was  contended  that  this  description  embraced  just  eighty-five  acres 
of  land,  located  in  a  certain  part  of  the  lot;  that  the  words  "more 
or  less "  were  surplusage,  and  particularly  so  here,  where  the 
quantity  is  an  essential  part  of  tlie  description.  But  the  court 
held  that  the  description  included  all  the  land  of  the  grantor 
remaining  unsold  in  the  west  part  of  the  lot  designated,  as  a  differ- 
ent intent  was  nowhere  manifest. 

Campbell,  J.,  who  delivered  the  opinion  of  the  court,  said :  "  In 
the  deed  the  lot  is  referred  to  as  if  it  were  a  well-known  tract, 
piece  or  division  of  land  ;  part  or  division  of  a  larger  parcel  or  tract, 
that  is  well  known  to  the  parties,  the  seller  and  the  purchaser. 
The  particular  piece  or  portion  is  designated,  also,  as  a  well-known 
part  or  division.  The  description  in  the  deed  is  very  uncertain 
and  indetinite,  but  the  intent  of  tlie  seller  is  very  manifest.  He 
conveyed  the  west  jmi-t  of  the  lot ;  not  the  west  quarter,  or  third, 
or  half ;  not  eighty -five  acres  to  be  taken  from  the  west  part,  but 
i\\Q  west  j>ttrt  itself,  whatever  that  might  be  in  acres;  eight-five 
acres,  more  or  less  "  {Pettit  v.  Shepard,  32  N.  Y.  B.,  97,  103). 

A  case  came  before  tlie  Superior  Court  of  the  city  of  New 
lork,  in  18G6,  in  which  the  doctrine  aG  to  tlie  boundary  upon 
streets  was  fully  discussed.  The  deed  calling  for  construction 
conveyed  to  tlie  plaintiff's  testator  a  plot  of  groupd  on  the  southerly 
side  of  Stewart  street,  in  New  York,  and  which  was  described  in 
the  deed  as  running  along  a  certain  road  "  to  Stewart  street,  and 
thence  along  the  westei'ly  side  of  Stewart  street,  westerly,  etc." 
The  court  held,  that,  under  the  description,  the  plaintiff's  right 
extended  only  to  the  lino  of  the  southerly  side  of  Stewart  street, 
and  not  to  the  center  of  that  street,  declaring  in  terms  that  when, 
from  the  description  in  a  deed,  it  is  manifest  that  the  parties 
intended  to  limit  or  extend  the  conveyance  to  the  lines  of  the 
highway  or  street,  no  ]iart  of  the  highway  or  street  passes  (A7ider- 
soii  V.  James,  4  lioh.  12.,  35). 

In  1835,  an  important  case  was  decided  in  the    late   Court  of 


CONSTRUCTIOX    OF  PARTICULAR    GRANTS.  153 

ClianceiT  of  the  State  of  New  York,  by  Yice-Cliancellor  AVilliams, 
which  called  for  the  construction  of  a  grant  from  the  State  of 
lands  bounded  on  the  Oswego  river,  in  the  present  city  of  Oswego. 
At  the  time  of  the  issuing  of  the  patent,  the  Oswego  liver,  at  ihe 
point  in  question,  was  regarded  as  navigable,  although,  of  course, 
above  tide-water.  The  patent  from  the  State  for  the  lot  in  ques- 
tion referred  for  its  location  to  a  map  on  file  in  the  Surveyor- 
General's  office,  upon  which  map  the  lot  was  laid  down  as  bounded 
on  the  river  generally.  The  vice-chancellor  held  that  the  patentee, 
under  this  description,  was  entitled  to  hold  the  land  to  the  middle 
of  the  stream,  declaring  that  the  law  might  then  be  considered 
settled  in  the  State  of  New  York  that  grants  of  land,  bounded 
on  rivers  and  streams  above  tide-water,  extend  usque  ad  Jilum 
aqucB^  and  if  the  stream  is,  in  point  of  fact,  navigable  for  boats  or 
other  craft,  the  public  have  a  right  of  passage  or  an  easement,  and 
notliing  more  ;  and  that  the  owner  of  the  adjoining  land,  or  the 
land  bounded  on  the  bank  or  margin  of  the  stream,  has  a  riglit  to 
nse  the  land  and  the  water  of  the  stream  in  any  way  not  incon- 
sistent with  the  easement  due  to  the  public  (  Varick  v.  Smith,  5 
Paige's  II.,  137).  This  decision  has  often  been  cited  in  the  courts 
of  New  York,  and  always  with  approval,  especially  as  to  the  con- 
struction put  upon  the  language  of  the  patent,  and  the  rights  of 
the  patentee  under  the  same,  that  is  to  say,  the  doctrine  of  the 
case  stands  undisturbed.  The  late  Chancellor  cf  the  State,  upon 
a  question  between  the  same  parties,  expressly  affirmed  the  doc- 
trine;  holding  that  where  the  State  conveys  a  lot  by  its  number 
and  reference  to  a  map  on  file  on  which  the  lot  is  laid  down  as 
extending  to  a  stream  above  tide-water,  the  eft'ect  is  the  same  as 
though  the  patent  had  described  the  lot  as  bounded  by  the  stream, 
and  the  patentee  takes  to  the  center  of  it  (  Varick  v.  Smith,  9 
Paige  R.,  574). 

An  early  case  involving  a  water  boundary  before  the  Court  of 
Appeals  of  the  State  of  New  York,  may  be  of  interest,  though 
the  principles  enunciated  in  it  are  Avell  settled.  The  oidy  ques- 
tion in  the  case  was  as  to  the  location  of  the  southerly  boundary 
line  of  the  plaintiflP's  lot.  The  conveyance,  from  the  source  of 
title  under  which  the  plaintiff  claimed  the  premises  in  controversy, 
described  the  land  convej^ed  as  follows:  "A  lot  of  land  fronting 
the  south  side  of  the  turnpike  road  running  easterly  by  Bennett's 
mills,  and  joining  the  east  line  of  lands  belonging  to  the  heirs  of 
20 


154  LAW  OF  BOUNDARIES. 

Ricliard  W.  Pelton,  deceased,  being  five  rods  east  and  west  in 
widtli,  and  running  south  trom  said  road  to  the  hank  of  the  Six 
Mile  creeh^''  There  was  a  controversy,  not  only  as  to  whether  the 
center  of  the  creek  or  the  bank  was  the  boundary,  but  as  to  where 
the  bank  of  the  creek  was.  The  court  lield  tliat  the  grantee  under 
the  deed  did  not  take  to  the  center  of  the  creek,  but  only  to  the 
bank  ;  that  tlie  bank  intended  was  the  line  to  which  the  water 
would  flow  at  low-water  mark,  and  that  such  a  description 
included  the  land  to  the  margin  of  the  stream  at  low  water.  And 
it  was  declared  that  the  rule  which  prevails,  in  this  respect,  as  to 
grants  bounded  on  the  shore  or  bank  of  the  sea  or  navigable 
rivers,  is  not  applicable  to  streams  not  navigable  {Halsey  v. 
McCormick,  1^  W.  Y.  R.,  296). 

And  a  very  important  case  in  the  late  Court  of  Errors  of  the 
State  of  New  York  is  often  quoted  as  a  precedent  in  these  cases. 
The  deed  calling  for  construction  by  the  court  conveyed  20,100 
acres  of  land  on  the  west  side  of  the  Genesee  river,  bounding  it 
easterl)'  on  the  hank  of  the  river^  agreeable  to  the  traverse,^''  and 
reserving  "  out  of  the  above  described  lands  100  acres  which  is 
conveyed  by  deed  to  Ebenezer  Allen,  and  is  to  be  laid  out  in  a 
square  form  as  near  as  the  traverse  of  the  river  will  admit,  and 
the  said  Allen's  mills  to  be  the  center  of  the  eastern  boundary." 
It  was  held  by  the  court  that  the  wdiole  tract,  including  the  100 
acre  reservation,  was  bounded  by  the  bank  of  the  river  and  not  by 
the  thread  of  the  stream.  Several  opinions  were  written  by  dif- 
ferent members  of  the  court,  and  many  cases  bearing  npon  the 
question  were  considered.  The  court  was  not  imanimous  in  the 
judgment  that  was  ordered,  but  there  M-as  a  degree  of  harmony  in 
the  doctrines  which  were  laid  down  {Starr  v.  Child,  5  Demo's  R., 
599). 

The  Court  of  Appeals  of  the  State  Xew  York  have  very 
recently  disposed  of  a  case  involving  the  construction  of  a  parti- 
cular description  in  a  deed.  The  action  was  ejectment,  and  both 
parties  claimed  under  a  common  source  of  title.  The  defendant's 
deed  was  prior  to  that  of  the  plaintiff,  and  bounded  the  land  con- 
veyed on  one  side  "  by  the  south-easterly  line  or  side  "  of  what 
was  formerly  known  as  First  avenue  in  the  city  of  Brooklyn. 
This  avenue  had  never  been  opened  as  a  public  highway,  and  liad 
been  discontinued  by  act  of  the  legislature.  The  defendant's  con- 
veyance contained  this  clause  also,  "  together  with  all  the  right  and 


CONSTRUCTIOX  OF  PARTICULAR    GRANTS.  155 

title  of  the  grantor  in  and  to  one-half  of  the  streets  and  aveniiea 
by  which  said  lots  are  bounded."  There  was  no  other  avenue 
referred  to  in  the  description  of  the  grunted  premises,  and  tlie 
grantor  liad  title  thereto.  The  court  held  unanimously  that  the 
defendant's  deed  carried  the  title  to  the  center  of  the  avenue 
{Terrett  v.  Tlce  Neio  York  and  Brooklyn  Steam  Saw-mill  and 
Lumber  Company,  49  N.  Y.  E.,  QQQ>). 

Another  late  case  before  the  same  court  was  this :  The  owners 
of  a  tract  of  land  caused  the  same  to  be  surveyed  and  subdivided 
into  lots  for  building  purposes,  and  a  map  thereof  to  be  made, 
upon  which  the  lots  were  designated  by  numbers,  and  abutted  at 
one  end  upon  a  strip  designated  as  an  alley,  and  such  owners  sub- 
sequently conveyed  one  of  the  lots,  describing  it  by  number  on  a 
map,  specifying  the  map  referred  to,  and  specifying  the  boundaries 
as  abutting  at  one  end  on  the  nortli  line  of  such  alley,  as  laid  down 
on  the  map.  The  court  held  unanimously  that  this  conveyance 
gave  to  the  grantee  a  right  of  way  over  the  alley  to  the  rear  of  his 
lot,  as  against  his  grantors  and  their  subsequent  grantee  of  the 
alley.  The  judge  who  delivered  the  opinion  of  the  court  stated 
that  the  question  whether  the  lot  conveyed  was  bounded  by  the 
north  side  of  or  the  center  of  the  alley,  was  not  material  to  the 
right  claimed  by  the  plaintiff  in  the  action,  which  was  a  right  of 
way  over  the  alley,  and  the  point  was  not  examined  {Cox  v.  James, 
45  iT.  Y.  E.,  557,  561). 

The  last  case  which  it  is  proposed  to  consider  upon  this  subject 
from  the  Isew  York  reports  is  one  also  very  recently  disposed  of 
by  the  Court  of  Appeals  of  the  State,  and  was  presented  thus : 
The  defendant  agreed  to  convey  to  the  plaintiff  a  house  and  lot  in 
the  city  of  New  York.  In  the  description  contained  in  the  con- 
tract, the  lot  was  stated  as  "  being  in  depth,  on  Clinton  street, 
120  feet,  including  the  stable  situated  on  the  rear  of  said  premises." 
He  executed  and  delivered  a  deed  to  carry  out  the  agreement, 
which  followed  the  description  contained  in  the  agreement,  except 
omitting  any  reference  to  the  stable.  It  was  supposed,  at  the 
time  of  the  execution  of  the  contract  and  deed,  that  the  stable 
was  upon  the  120  feet,  but  subsequentlj'  it  was  discovered  that,  in 
order  to  include  the  stable,  the  lot  should  be  131  feet  and  ten 
inches  deep.  In  an  action  brought  by  the  plaintiff  for  specific 
performance,  the  Court  of  Appeals  held,  reversing  the  order  of 
the  Supreme  Court  at  General  Term,  and  aihrming  the  judgment 


15G  LAW  OF  BOUNDARIES. 

at  Special  Terra,  that  under  the  well-settled  rule  that,  in  the  con 
struction  of  grants,  courses  and   distances  must  yield  to  fixed 
known  monuments,  the  plaintiffs  were  entitled  to  a  deed  that 
would  include  the  land  upon  which  the  stable  stood  ( White  v. 
Willia7ns,  48  iV.  Y.  B.,  344). 


CHAPTER  XIII. 

FURTHER  CASES  PASSED  UPON  BY  THE  COURTS  GIVING  CONSTRUCTION  TO 
PARTICULAR  CONVEYANCES  IN  RESPECT  TO  BOUNDARY CASES  MIS- 
CELLANEOUSLY STATED. 

All  of  the  cases  heretofore  considered  under  this  head  have 
been  decided  by  the  different  courts  of  the  State  of  New  York. 
They  are,  however,  of  universal  application  as  precedents,  as  none 
of  them  were  disposed  of  in  pursuance  of  any  usage  or  statute. 
It  is  proposed  now  to  refer  to  some  leading  authorities  upon  the 
same  subject  to  be  found  in  the  judicial  reports  of  other  States 
and  of  the  Federal  courts.  These  cases  will  be  considered  without 
particular  regard  to  Avhere  or  when  they  arose. 

A  recent  case  came  before  the  Supreme  Court  of  Errors  of  Con- 
necticut, involving  the  boundary  of  land  upon  a  highway.  Tlie 
petitioner  was  the  owner  of  a  piece  of  land  specifically  descrll)ed 
in  the  conveyance  to  him.  The  land  was  actually  bounded  on  the 
west  by  the  higlnvay,  although  the  deed  did  Tiot  in  terms  bound 
the  same  on  such  highway.  The  court  declared  the  rule  of  law  to 
be  well  established,  that  a  conveyance  of  land  bounded  on  a  piib- 
lic  highway  carries  M-ith  it  a  fee  to  the  center  of  the  road  as  part 
and  parcel  of  the  grant.  And  as  it  was  established  that  the  land 
in  question  was  in  fact  bounded  upon  the  highway,  the  court  held 
that  the  mere  fact  that  it  was  not  so  described  in  the  deed  would 
not  vary  the  construction.  In  either  case,  it  Avas  thought  by  the 
court,  the  presumption  tliat  it  was  not  the  intention  of  the  grantor 
to  withhold  his  interest  in  the  road  to  the  middle  of  it,  after  part- 
ing with  all  his  right  to  the  adjoining  land,  M'ould  be  tiie  same. 
That  is  to  say,  unless  such  intention  clearly  appeared  tlie  pre- 
sumption would  ai)ply.  The  court  could  see  nothing  in  tlie 
language  of  the  deed,  or  in  the  situation  or  circumstances  of  the 
property  conveyed,  to  warrant  the  inference  that  any  such  iiiten 


COXSTRVCTTOK  OF  PARTICULAR    GRANTS.  157 

tion  existed  in  tlie  case,  and  tlierefore  it  was  held  that  the  grantee 
in  the  deed  under  consideration  took  to  the  center  of  the  road 
{Gear  V.  Banium,  37  Coiiti.  R.,  229). 

The  Supreme  Court  of  Missouri  has  recently  made  a  decision 
illustrating  the  rules  of  construction  to  be  applied  to  a  deed  of 
real  estate,  which  is  of  considerable  interest  in  a  certain  aspect  of 
the  subject.  The  language  conveying  the  premises  was :  "  Lot 
Ko.  3,  in-  block  87,  in  the  old  town  of  Hudson,  now  Macon, 
beginning  at  the  north-east  corner;  thence  west  to  the  alley; 
thence  *  *  *  to  the  beginning."  The  description  in  fact 
embraced  less  than  lot  3  ;  but  the  court  held  that  the  description 
by  lot  should  prevail  over  that  by  courses  and  distances,  and  that, 
therefore,  the  whole  of  the  said  lot  3  was  conveyed.  This  rule  of 
construction  the  court  thought  a  reasonable  one,  and  one  that  was 
generally  acquiesced  in  {Rutlierford  v.  Tracy,  48  Mo.  I/.,  326). 

A  late  case  came  befoi'e  the  Supreme  Court  of  Maine,  where  both 
termini  of  the  boundary  in  a  deed  were  on  the  westerly  side  of 
the  road,  and  it  was  held  that  the  deed  should  be  construed  so  as 
to  exclude  the  road  on  the  east ;  that  is  to  say,  the  deed  was 
construed  by  the  court  as  bounding  the  land  conveyed  by  the  west- 
erly side  of  the  road  (Cottle  v.  Young,  59  Maine  R.) 

In  a  late  case  before  the  Supreme  Court  of  Errors  of  Connecti- 
cut, where  it  appeared  that  a  right  of  way  had  been  granted  to  a 
railroad  company  across  certain  lands  bounded  upon  a  harbor,  aiid 
was  described  as  "  extending  from  said  harbor  on  the  west  to  the 
land  of  William  11.  ISToble  on  the  east,"  the  court  held  that  the 
right  of  way  extended  across  the  mud  flats  west  of  the  land 
between  high-water  mark  and  low-water  mark.  Seymour,  J.,  who 
delivered  the  opinion  of  the  court,  said:  "The  plaintiff  is 
undoubtedly  right  in  the  claim  that  in  Connecticut  the  owners  of 
land  bounded  on  a  harbor  own  only  to  high-water  mark,  and  that 
whatever  rights  such  owners  have  of  reclaiming  the  shore  are  mere 
franchises.  Where,  however,  such  reclamations  are  made,  the 
reclaimed  portions  in  general  become  integral  parts  of  the  owner's 
adjoining  lands.  By  means  of  such  reclamations  the  line  of  high- 
water  mark  is  changed  and  carried  into  the  harbor,  and  the 
ownei-'s  lands  have  gained  the  reclaimed  shore  by  accretion  ;  the 
principles  governing  the  case  being  the  same  as  those  which  prevail 
where  the  sea  recedes  gradually  by  accession  of  soil  to  the  land. 

"  If  the  grant  had  been  in  terms  of  a  right  of  way  to  and  from 


158  LAW  OF  BOUNDARIES. 

the  liarbor,  the  grantees  would  be  entitled  to  come  to  the  harbor, 
over  whatever  intervening  accessions  of  soil  might  accrue  between 
high  and  low-water  mark.  If  the  line  of  hio-h-water  mark  should 
be  changed  by  natural  or  by  artificial  causes,  the  right  of  way 
would  follow  the  changed  line  of  the  harbor,  and  this  deed  in  con- 
nection with  the  map  show^s  that  the  object  of  the  deed  was  to 
enable  the  grantees  to  reach  the  liarbor,  and  by  means  of  the  right 
of  way  therein  granted  to  connect  their  road  on  the  east  with  the 
harbor  and  their  road  across  the  harbor  on  the  west "  {Lockwood 
V.  The  NeiD  York  and  New  Haven  Railroad  Company,  37  Conn. 
B.,  387,  391). 

An  interesting  case  was  recently  disposed  of  by  the  Supreme 
Court  of  New  Hampshire,  calling  for  the  construction  of  the 
descriptive  language  of  a  conveyance.  It  appeared  that  three 
successive  deeds  had  been  given,  "  reserving  about  three-fourths 
of  an  acre  of  land  in  and  about  the  graveyard  on  said  premises,  as 
now  staked  out,  to  be  kept  for  a  graveyard  lot  for  the  heirs." 
There  was  a  graveyard  on  the  farm  conveyed,  about  four  rods 
square,  inclosed  by  stone  posts  and  chains.  The  court  held  that, 
if  there  were  no  mouuinents  on  the  ground  to  answer  the  descrip- 
tion "as  now  ttukcd  out,"  so  that  the  land  intended  to  be  excepted 
could  not  be  located  without  resort  to  a  parol  agreement  cotem- 
poraneous  with  the  first  deed,  tlie  exception  must  fail  as  to  all  but 
the  graveyard  then  on  the  premises.  The  court  considered  the 
words  "as  now  staked  out"  to  constitute  a  material  part  of  the 
description,  and,  consequently,  that  the  three-fourths  of  an  acre 
could  not  be  located  in  a  square  form  about  the  graveyard 
{Andrews  v.  Todd,  50  N.  II.  B.,  565). 

A  conveyance  of  lands  in  the  State  of  New  Jersey  described 
the  premises  by  courses  and  distances,  with  the  addition  of  the 
words  "being  the  same  premises  conveyed  to  K.,  the  grantor,  by 
N.,  by  deed  dated,"  etc.  The  Court  of  Chancery  of  the  State  held 
that  this  conveyance  included  the  whole  premises  contained  in  the 
deed  to  the  grantor,  although  the  specific  description  omitted  a 
small  strip  of  the  land  covered  by  it  (  Wtiesthojf  v.  Seymour,  22 
N.  J.  El.  B.,  ^^). 

In  a  conveyance  of  a  town  lot  in  North  Carolina,  the  numbers 
of  the  lot  upon  a  plat  of  the  town  were  given  to  idehtify  it,  and  a 
reference  was  also  made  to  neighboring  streets ;  but  the  two  parts 
of  the  description  were  inconsistent  with  each  other.     The  court 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  159 

held  that  the  reference  to  the  streets  must  give  way,  for  the  reason 
that  the  lot  was  the  object  and  not  the  street.  The  court  further 
intimated  that  a  description,  in  pursuance  of  the  primary  object 
for  which  the  lot  was  mentioned  or  named,  is  less  apt  to  be  errone- 
ous than  a  description  by  reference  to  the  number  or  name  of  the 
street,  as  that  is  incidental,  and  is  a  secondary  and  not  the  primary 
object  for  which  the  streets  were  named  {^Doe  v.  Wilmlngtoii,  etc., 
Bailroad  Company.,  07  iF.  C.  B.,  413). 

In  a  case  recently  decided  by  the  Supreme  Court  of  Illinois,  the 
deed  which  called  for  construction  bounded  the  land,  l)y  monu- 
ments and  courses  and  distances  beyond  dispute,  "  to  the  west  side 
of  C.  creek,  thence  down  the  west  line  of  said  creek  to  the  north 
line  of  said  quarter  section."  The  court  very  properly  decided 
that  an  express  grant  fixes  its  own  limits,  and  that  the  rule  that 
laud  bounded  by  the  bank  of  a  stream  necessarily  excluded  the 
stream  itself,  applied  to  this  description.  It  was  therefore  held 
that  this  deed  carried  the  grantee  only  to  the  west  bank  of  the 
creek,  and  did  not  give  him  any  right  in  the  bed  of  the  stream 
{Rochvjell  V,  Baldwin,  53  III.  i?.,  19). 

The  Supreme  Court  of  California  has  lately  decided  that,  where 
the  courses  called  for  in  a  deed  were  described  as  east,  west, 
south  and  north,  and  were  controlled  by  otlier  well-defined  and 
certain  descriptions,  in  order  to  harmonize  all  the  calls  of  the  deed 
these  words  might  be  read  easterly,  westerly,  southerly  and  north- 
erly. The  court  was  very  clear  in  the  opinion  that  this  was  tlie 
proper  construction  to  be  put  upon  the  descriptive  language  of  the 
deed,  and  it  was  interpreted  in  accordance  with  this  view  {Faris 
V.  Phelan,  39  Cal.  B.,  612).  And  in  another  case  before  the  same 
court,  involving  the  construction  of  the  description  in  a  deed  of 
conveyance  which  ran  thus:  "All  my  rights,  etc.,  to  a  parcel  of 
land  situate,  etc.,  being  block  No.  9,  the  same  on  which  I  now 
reside.  The  part  thus  donated  commences  at  the  north-east  corner 
of  said  block,  running  twenty-five  varas  west  from  said  corner ; 
thence  back  one  hundred  varas."  The  court  held  this  to  be  a  suf- 
ficient description,  and  tliat  it  effectually  conveyed  a  strip  ott'  the 
easterly  side  of  the  block  twenty-five  varas  wide  and  one  hundred 
varas  deep.     {De  Levillain  v.  Evans,  89  Cal.  R.,  120). 

A  man  owning  lands  on  both  sides  of  a  stream  not  navigable,  in 
the  State  of  West  Virginia,  conveyed  a  portion  of  his  land  on  one 
side  of  the  stream,  and  bounded  it  generally  by  the  streanj.     The 


3  GO  LAW   OF  BOUNDARIES, 

Supreme  Court  of  the  State  held  that  tlie  conveyance  passed  a 
moietj  of  the  bed  of  the  stream  or  water-course  to  the  grantee ; 
declaring  that  such  should  always  be  the  construction  to  be  put 
upon  similar  conveyances,  unless  such  a  construction  of  the  grant 
be  clearly  excluded  by  its  own  terms  {Camden  v.  Creel,  4  W.  Va. 
B.,  365). 

A  very  interesting  case  was  lately  decided  by  the  Court  of 
Chancery  of  Kew  Jersey,  which  involved,  among  other  things, 
the  consti'uction  to  be  put  upon  a  conveyance  of  land ;  and 
although  the  case  did  not  turn  wholly  upon  the  language  of  the 
description  in  the  deed,  it  is  of  sufficient  interest  upon  the  subject 
of  construction  to  be  noted. 

The  owner  of  adjoining  lots  in  Jersey  City,  having  a  fence 
between  them  and  small  houses  adjoining,  conveyed  one  lot  to  A. 
and  tlie  other  lot  afterward  to  B.,  without  referring  in  the  deed 
to  the  fence ;  the  beginning  point  in  the  deed  to  B.  being  the 
north  side  of  South  Sixth  street,  sixty-five  feet  seven  and  a  half 
inches  east  of  the  north-east  corner  of  South  Sixth  and  Monmouth 
streets;  and  that  in  the  deed  to  A.  being  forty-three  feet  nine 
inches  east  of  that  corner;  the  difference  being  exactly  the  width 
of  A.'s  lot.  An  experienced  surveyor,  accustomed  to  surveying 
in  Monmouth  street,  located  B.'s  lot  by  running  from  the  east  line 
of  that  street  as  it  was  built  upon ;  and  fixed  his  west  line  ten 
inches  west  of  the  fence ;  and  B.  proceeded  to  build  a  tliree-story 
frame  dwelling  on  his  lot  as  thus  located.  A.  did  not  interfere 
or  give  notice  not  to  erect  the  building  on  that  line  until  it  was 
nearly  finished,  when  a  surveyor  employed  by  him  run  a  line 
from  Monmouth  street  without  reference  to -the  line  of  the  build- 
ings thereon,  by  which  he  located  the  line  about  where  the  fence 
had  been,  making  B.'s  house  ten  inches  over  the  line  of  B.'s  lot, 
as  he  had  located  it.  The  court  held  that  the  line  upon  which 
B.'s  house  was  erected  must  be  held  to  be  the  true  line  between 
the  lot  of  B.  and  that  of  A.  Chancellor  Zabriskie,  in  his  opinion, 
said  :  "  The  line  located  by  the  complainant's  surveyor,  parallel  to 
the  west  side  of  Monmouth  street,  and  not  the  diagonal  line  fi.xed 
by  the  surveyor  of  the  defendant,  must  be  taken  to  be  the  true 
line  of  Monmouth  street,  as  actually  located.  This  is  the  only 
monument  called  for  by  either  deed.  Neither  deed  mentions  the 
fence,  or  the  houses  standing  on  the  lots,  or  the  row  of  eight 
houses.     Bentley  and  Smith  owned  both  lots,  and  had  the  right 


COXSTRUCTIOX  OF  PARTICULAIi    GRANTS.  IGl 

to  make  the  division  line  in  their  sale  where  they  pleased.  They 
may  and  probably  did  intend  to  convey  to  each  a  house  and  lot, 
as  they  were  built  and  fenced  off.  But  they  have  expressed  no 
such  intention,  but  have  cliosen  to  make,  and  the  grantees  to 
accept,  conveyances  calling  for  the  street  as  a  monument.  And  it 
has  been  held  by  the  Supreme  Court  that  wliere  a  deed  calls  for 
the  line  of  a  street  as  a  monument,  it  shall  be  held  to  mean  the 
line  as  laid  out,  when  not  ascertained  or  acted  upon  "  {De  Veneij 
V.  Gallagher,  20  iV"".  J.  Ch.  R.,  33,  38 ;  and  vide  Smith  v.  The 
State,  3  Zab.  E.,  130;  Den  v.  Van  Ilouten,  2  ih.,  61). 

A  case  before  the  Supreme  Court  of  North  Carolina  recently 
called  for  the  construction  to  be  put  upon  the  following  descrip- 
tion in  a  deed  :  "  Tlience  57  E.,  3-i  poles,  with  the  ditch,  to  a  wil- 
low stump  on  the  bank  of  the  ditch."  The  ditch  at  the  beginning 
was  eighteen  links,  and  at  the  end,  two  poles  wide ;  and  the  wil- 
low stump  was  not  directly  upon  the  bank,  but  upon  a  run  which 
conveyed  the  water  from  the  ditch.  The  court  held  the  language 
of  the  description  to  mean  through  the  middle  of  the  ditch  to  its 
end,  and  thence  down  the  run  to  the  willow  stump  {Cansler  v. 
Henderson,  64  JV.  C.  R.,  469).  And  the  same  court  held,  at 
about  the  same  time,  that  a  description  in  a  deed  of  "  752  acres  of 
land,  including  the  land  I  now  live  on,  and  adjoining  the  same," 
was  too  vague  to  convey  more  than  tlie  lands  lived  on,  when  the 
grantor  owned  much  more  than  752  acres  adjoining  the  land  he 
lived  on.  It  was  declared  that,  under  such  circumstances,  "  adjoin- 
ing" could  not  be  aided  by  parol  evidence  {Robeson  v.  Lewis,  64 
N.  C.  R.,  734). 

In  respect  to  lands  bounded  upon  a  water-course,  the  Supreme 
Court  of  the  State  of  Texas  has  recently  held  that,  in  the  absence 
of  all  other  evidence,  where  the  deed,  in  defining  the  boundary 
of  the  appellant's  land,  said  "thence  down  the  main  channel  of 
the  Comal  spring,"  etc.,  the  thread  of  the  stream  of  the  Comal' 
was  the  utmost  limit  of  the  rights  of  the  appellant  {Midler  v.. 
Lander,  31  Tex.  R  ,  265). 

Two  tracts  of  land  in  Missouri,  conveyed  to' different  grantees^ 
by  the  same  grantor,  lay  upon  opposite  sides  of  a  pond,  througb 
which  a  creek  flowed  at  the  time  of  making  the  deeds.  Both 
of  the  deeds  describing  the  separate  tracts  of  land  gave  the' 
boundary  line  dividing  them  Ps  "the  middle  of  the  natural 
channel  of  the  creek  when  the  pond  is  exhausted."  The: 
21 


J^()2  LAW  OF  BOUXDARIES. 

\vater  in  the  pond  was  drawn  off  or  exhausted  about  eighteen 
or  nineteen  years  after  the  deeds  were  made.  The  question 
before  the  Supreme  Court  was  as  to  the  construction  to  be  given 
to  the  phrase  "  the  middle  of  the  natural  channel  of  the  creek 
when  the  pond  is  exhausted ;"  and  it  was  held  that  the  phrase 
meant  the  position  of  the  thread  of  the  creek  at  the  time  when 
the  pond  was  actually  exhausted  {Mincke  v.  Skinner,  44  Mo, 
/?.,  92). 

The  Supreme  Court  of  Maine  lately  had  a  case  before  it  involving 
the  interpretation  of  the  description  in  a  deed,  wherein  it  appeared 
that  the  boundary  of-  one  side  of  a  lot  of  land  conveyed  by  deed 
was  "  by  the  new  county  road,  leading  from  "  a  place  named  "  to" 
another  place  named ;  and  the  original  location  of  the  road  dif- 
fered from  that  of  the  road  as  actually  built  and  traveled.  The 
court  held  that  the  road,  as  actually  built  and  traveled,  must  be 
regarded  as  the  boundary  referred  to  {Sproul  v.  J^oye,  55  Maine 
i?.,  162).  And  at  about  the  same  time  the  same  court  held  that 
courses  laid  down  in  a  deed,  which  are  repugnant  to  the  remainder 
of  the  description,  may  be  rejected  if  the  remainder  contains 
sufficient  that  is  intelligible  and  consistent  to  uphold  the  deed 
according  to  the  evident  intention  of  the  parties  {Beal  v.  Gordon, 
.55  Maine  R.,  482). 

In  a  case  before  the  Supreme  Court  of  Yermont,  where  it 
appeared  that  the  grantor  in  a  deed,  one  "Weeks,  owned  the  land  to 
and  across  the  Vermont  and  Canada  railroad,  and  the  words  of 
description  were:  "beginning  on  the  west  line  of  Vermont  and 
Canada  railroad  and  south-east  corner  of  land  west  of  said  Weeks, 
thence  south  on  the  west  line  of  said  railroad,  twenty-eight  rods; 
thence  west,"  etc.,  the  court  held  that  the  intention  of  the  parties 
clearly  was,  to  bound  on  the  west  line  of  the  railroad  and  not  on 
the  center  line  {Maynard  v.  Weeks,  41  Vt.  R.,  617). 

In  a  case  before  the  Supreme  Court  of  "West  Virginia,  where  a 
call  for  a  boundary,  contained  in  a  deed,  was  "  from  the  base  of 
the  hill  to  the  back  line  of  the  survey,  such  course  as  will  show 
500  acres  of  said  tract  of  1,000  acres  below  said  division  line," 
the  court  held  that  the  call  for  the  "back  line"  would  control  the 
call  for  quantity,  and  that  the  line  from  the  base  of  the  hill  to  the 
'back  line  must  be  a  straight  line  {Tomkins  v.  Vintroux,  3  W.  Va., 
R.,  148). 

In  the  State  of  Texas,  the  description  in  a  deed  was  the  follow 


COySTRUCTTON  OF  PARTICULAR    GRANTS.  163 

ino-:  "Beo-innino-  at  the  west  corner  of  tlie  G.  survey,  tlience  3. 
45°  E.  to  B.'s  corner;  thence  N.  45°  E.  to  B.'s  corner  on  T.'s 
line ;  thence  N.  45°,  W.  to  the  south  boundary  line  of  the 
E.  survey;  thence  S.  45°  W.  to  the  beginning,  to  include  571 
acres  of  land ;  and  if  said  point  will  not  include  enough  land 
to  make  the  complement  571  acres,  it  is  to  run  north  on  said 
E.  survey  for  the  deficit."  The  Supreme  Court  of  the  State 
held  that  this  description  passed  all  the  grantor's  land  in  the 
G.  league  bounded  on  one  side  by  B.'s  line  and  on  the  other  by 
T.'s  line,  and  that  what  it  lacked  of  571  acres  should  be  supplied 
from  the  E.  league.  And  it  was  further  held,  that  the  grantee 
was  not  restricted  to  571  acres,  if  the  tract  described  contained 
more,  as  it  did  not  appear  that  the  land  was  sold  by  the  acre,  and 
there  were  no  words  expressing  an  intention  to  restrict  the  convey- 
ance to  exactly  571  acres  {Johnson  v.  Garrett,  25  Tex.  E. 
[«?Ap/».],  13). 

The  Supreme  Judicial  Court  of  Massachusetts,  some  time  since, 
decided  that  a  deed  of  a  mill  and  mill-dam,  "  with  all  the  rights, 
privileges  and  appurtenances  thereto  appertaining,  as  mill-yard, 
timber,  stove,  iron,  stream  or  streams,  including  a  lot  of  land 
lying  on  the  north  side  of  the  river  and  bounded  on  the  west  by 
the  highway,"  did  not  convey  any  land  west  of  the  highway,  and 
could  not  be  shown  to  have  that  effect  by  evidence  that  the  owner 
of  the  mill  had  been  accustomed  so  to  deposit  logs  for  more  than 
twenty  years  {Morton  v.  Moore,  15  Graifs  R.,  573).  And  the 
same  court  decided  in  another  case,  where  it  appeared  that  A.  con- 
veyed to  W.  a  lot  of  land  "  situate  on  the  northerly  side  "  of  a 
certain  street,  and  "  bounded  and  described  as  follows :  beginning  at 
a  point  on  the  line  of  land  of  B. ;  thence  by  said  street  nortli  fifty- 
eight  and  three-quarter  degrees  west,  about  one  hundred  feet,  to  a 
stake  and  stones  at  the  corner  of  land  of  G.  ;  thence  north  thirty- 
one  and  a  quarter  degrees  east,  to  the  river ;  thence  by  said  B.'s 
land  to  the  first-mentioned  bound,"  that  the  fee  of  the  land  to  the 
center  of  the  street  passed  to  W.,  it  appearing  that  A.  M-as  seised 
thereof  at  the  time  of  this  conveyance  {White  v.  Godfrey,  97 
Mass.  R.,  472). 

In  the  Supreme  Court  of  the  State  of  Maine,  in  a  case  wherein 
it  appeared  that  the  last  call  in  a  deed  describing  the  territory  in 
township  No.  21  was  from  an  undisputed  point  of  departure, 
"  thence  south-westerly  by  a  line  to  be  run  between  townships  No. 


164  LAW  OF  BOUNDARIES. 

21  and  Xo.  22,  to  the  place  of  beginning,"  it  was  lield  that  the 
call  repudiated  all  former  lines  between  the  terimni  mentioned, 
and  that  the  line  to  be  run  should  be  the  shortest  distance  between 
the  points  named  ;  and  that  a  subsequent  clause  "  according  to  a 
survey  and  plan  of  said  township  by  P.  and  D.,"  could  not  control 
or  modity  the  preceding  language.  And  the  court  accordingly 
held  that  an  instruction  to  the  jury  that  another  line,  admitted  to 
have  been  made  by  the  proprietors  prior  to  the  date  of  the  deed 
to  the  plaintiffs,  purporting  to  be  the  true  line  between  townships 
21  and  22,  was  the  controlling  monument  answering  tlie  call,  and 
that  the  point  of  departure  must  be  rejected  as  inconsistent  with 
the  other  and  superior  monument  referred  to  in  the  deed,  was 
erroneous.  {Grant  v.  Blacky  53  Maine  i?.,  557). 

"Where  a  description  in  a  deed  was  as  follows  :  "A  part  of  frac- 
tional section  number  19,  being  the  half  of  the  west  half  of  the 
north-west  quarter  of  section  number  29,  in  township  7,  south,  of 
range  14,  west,  containing  40  acres,"  the  Supreme  Court  of  Indi- 
ana held  that,  rejecting  the  words  "a  part  of  fractional  section 
number  19,"  as  contradicting  a  more  particular  description  follow- 
ing, the  conveyance  was  good  to  pass  an  undivided  half  of  the 
west  half  of  the  north-west  quarter  of  the  section  referred  to ; 
applying  the  rule  of  construction,  that  words  of  particular  descrip- 
tion will  control  more  general  terms  of  description  where  both 
cannot  stand  together  [Gano  v.  Aldrldge,  27  Ind.  B.,  294). 

The  Supreme  Court  of  Maine  decided  that,  where  land  was 
described  in  a  deed  as  beginning  at  a  stake  and  stones  and  the 
corner  of  the  grantor's  land,  thence  running  in  a  certain  direction 
on  the  grantor's  land  and  A.  D.'s  line,  the  true  corner  of  the 
grantor's  land,  if  established,  was  the  point  of  beginning;  and 
that  parol  evidence  that  the  stake  and  stones  were  in  another 
place  was  not  admissible ;  and,  further,  that  the  true  line  between 
the  grantor  and  A.  D,  was  the  true  boundary  on  that  side.  And 
it  was  declared  by  the  court  that  it  was  not  material  that  the 
grantor  and  former  owner  of  the  land  adjacent  had  occupied  to 
tlie  stake  and  stones  for  ten  years,  or  that,  before  conveying,  the 
plaintiff,  defendant  and  a  surveyor  established  the  stake,  etc.,  as 
monuments  and  bounds,  and  the  defendant  supposed  them  to  be 
the  true  bounds  when  he  took  the  deed  ( Wlswell  v.  Marston,  54 
Maine  R.,  270).  And  the  same  court  held,  at  the  same  term_ 
where  the  owner  of  land,  and  a  street  running  through,  conveyed 


COXSTRUCTIOX  OF  PARTICULAR    GRAXTS.  1C5 

all  the  laud  south  of  the  southerly  Hue  of  said  street  to  "A.,"  and 
at  the  same  time  conveyed  to  "  B."  all  the  land  north  of  the  south- 
erly line  of  said  street,  that  the  fee  in  the  land  covered  by  the 
street  passed  to  "  B."  And  it  was  farther  held  that  words  in  the 
deed  to  A.'s  grantor,  "  with  the  buildings  thereon,"  ad  haben- 
dum^ "above  granted  premises,  with  privileges  and  appurtenances 
thereto  belonging,"  did  not  pass  tlie  fee  to  any  portion  of  the 
land  north  of  the  southerly  line  of  the  street  (  Wari'eri  v.  Blal^e^ 
5i  Maine  i?.,  276). 

A  deed  of  land  in  Massachusetts,  in  describing  the  granted  pre- 
mises, after  naming  a  certain  monument,  added,  "  thence  running 
southerly  by  land  improved  by  A.  to  the  road ;"  and  it  appeared 
that  a  straight  line  to  the  road,  running  a  little  east  of  souih,  would 
include  the  laud  improved  by  A.  in  the  granted  premises;  while 
a  line  running  a  little  south  of  west  to  the  corner  of  the  land 
improved  by  A.,  and  thence  along  the  line  of  said  land  a  little 
east  of  south  to  the  road,  at  a  point  nearly  south  of  the  monu- 
ment, would  exclude  said  land  from,  the  granted  premises.  Tlie 
Supreme  Judicial  Court  of  the  State  held  that  the  latter  construc- 
tion was  to  be  adopted  as  the  true  one ;  and  the  court  declared 
that,  where  a  description  in  a  deed  is  clear  and  unambiguous,  the 
court  will  put  a  construction  upon  the  terms  used,  and  will  not 
receive  parol  evidence  to  show  the  intention  of  the  parties  and 
control  its  legal  effect.  And,  further,  that  where  au}^  part  of  the 
description  in  a  deed  is  inconsistent  with  the  rest,  and  thus  shown 
to  be  erroneous,  it  will  be  rejected  by  the  court  {Bond  v,  Fay^  12 
AlUrCs  B.,  86). 

"Where  a  boundary  line  in  a  deed  of  land  in  California  was 
described  as  commencing  at  a  tree,  and  "  thence  running  easterly 
parallel  with  the  southern  line  of  said  Antelope  ranch,  according  to 
the  survey  of  the  same  made  by  the  United  States  Surveyor-General 
for  said  State,  to  said  Antelope  creek,"  the  Supreme  Court  of  the 
State  held  that  the  language  was  not  ambiguous;  and  that  evi- 
dence aliunde  was  not  admissible  to  show  that  a  straight  line,  fol- 
lowing the  general  course  of  the  southern  boundai-v,  was  intended. 
And  it  was  further  held  that  the  southern  line  of  Anteh^pe  ranch 
referred  to,  being  a  broken  line,  and  there  being  no  nionnniciit 
referred  to  at  which  the  line  would  terminate,  the  boundary  would 
run  parallel  with  the  broken  line,  and  not  straight  and  parallel 
with  its  general  course  {Pratt  v.  Woodward,  32  Cal.  B.,  211)). 


166  LAW  OF  BOVNDAEIES. 

In  settlement  of  a  dispute  between  M.  and  P.  as  to  the  title  to 
a  tract  of  land  in  Ohio,  P.  conveyed  a  part  thereof  containino;  325 
acres  to  M. ;  and  two  months  later  M.  conveyed  to  P.  a  tract 
which,  by  the  distances  given,  included  part  of  the  land  conveyed 
by  P.  to  M.,  bnt  was  described  as  bounded  by  "  the  tract  of  325 
acres  of  said  M."  The  Supreme  Court  of  the  State,  before  whom 
the  deeds  came  for  construction,  held  that  the  deeds  were  to  be 
construed  together,  and  that  the  measurements  should  be  rejected, 
and  the  line  established  by  the  first  deed  and  referred  to  by  the 
second  should  be  adopted  {Calhouji  v.  Pi'ice,  17  Ohio  St.  i?.,  96). 

In  a  somewhat  recent  case  before  the  Supreme  Court  of  Ver- 
mont, where  the  description  in  a  deed  read  "  east  15  degrees  south 
on  said  L.'s  line,"  and  it  was  found  that  L.'s  line  ran  east  13f 
degrees  south,  it  was  held  that  "on  said  L.'s  line"  was  the  con- 
trolling description.  Tiie  variance  in  the  courses  between  the 
description  in  the  deed  and  the  actual  tact  was  deemed  immate- 
rial, and  was  disregarded  {Park  v.  Pratt,  38  Vt.  C,  515). 

A  description  of  lands  in  the  State  of  New  Jersey  was  given 
in  the  deed  as  beginning  "  on  the  south-west  side  of"  a  certain 
highway,  and  there  were  no  other  words  in  the  conveyance  to 
show  the  intent  of  the  parties  ;  the  courts  of  the  State  held  that 
the  description  excluded  the  highway,  that  is,  that  no  part  of  the 
highway  passed  by  the  deed  {Iloboken  Land,  etc.,  Company  v. 
Kerrigan,  2  Yroomi's  R.,  13).  And  the  Supreme  Court  of  the 
State  of  Wisconsin  has  recently  declared  that,  where  a  highway 
or  river  is  named  in  a  deed  as  a  boundary  of  land  conveyed,  the 
center  of  such  highway  or  river  is  to  be  understood,  unless  there 
are  express  words  limiting  the  boundary  to  the  bank  of  the  river 
or  the  side  of  the  highway  ;  but  that,  where  there  is  a  known  and 
well-ascertained  place  of  beginning  in  the  description  in  a  deed, 
that  must  govern,  and  the  grant  must  be  confined  within  the 
boundaries  given.  The  case  before  the  court  was  this:  "Where 
there  was  a  road  three  rods  wide  along  the  northern  line  of  a  sec- 
tion, and  one  four  rods  wide  along  the  western  line  (the  section 
line  in  each  case  being  the  center  of  the  road),  land  conveyed  by 
a  deed  was  described  therein  as  "  commencing  on  the  road  at  the 
north-west  corner"  of  said  section,  "thence  south  on  the  road" 
runnino:  along  the  west  side  of  said  section,  "sixteen  rods;  thence, 
at  right  angles  with  said  road,  and  parallel  with  the  north  line  of 
said  section,  twenty  rods  to  a  stake  ;  thence,  at  right  angles,  and 


CONSTRVCTIOX  OF  PARTICULAR    GRAXTS.  \Q)1 

parallel  with  the  west  Hne  of  said  section,  to  the  road  "  on  the 
north  side  of  the  section  ;  "  thence  west,  along  the  line  of  said 
road,  twenty  rods,  to  the  place  of  beginning,  containing  tvyo 
acres  ;  "  by  actnal  survey  it  appeared  that  the  stake  mentioned  in 
tlie  deed  was  twenty-two  rods  east  of  the  west  line,  and  seventeen 
and  a  half  rods  south  of  the  north  line  of  said  sectiun.  The  court 
held  that  in  determining  the  land  conveyed  by  the  deed  it  was 
necessary  to  commence  with  the  intersection  of  the  center  lines  of 
said  roads,  which  was  the  north-west  corner  of  the  section  —  to 
follow  the  center  line  of  the  west  road  sixteen  rods;  to  follow  a 
direct  line  to  said  stake ;  thence  a  line  parallel  with  the  west  sec- 
tion line  to  the  center  of  the  road  on  the  north ;  and  thence  along 
the  center  of  said  road  to  the  place  of  beginning.  And  the  court 
declared,  in  deciding  the  case,  that,  in  construing  the  description 
of  land  in  a  deed  of  conveyance,  a  section  corner  mentioned  therein 
will  control  courses  and  distances  {Gove  v.  White^  20  Wis.  R., 
425). 


CHAPTER  XIV. 

FURTHER  CASES  PASSED  UPON    BY   THE    COURTS,  GIVING   CONSTRUCTION 

TO    PARTICULAR   CONVEYANCES    IN    RESPECT    TO    BOUNDARY CASES 

MISCELLANEOUSLY  STATED. 

There  are  still  other  cases  which  have  been  passed  upon  by  the 
courts,  involving  the  interpretation  of  the  language  of  particular 
conveyances  in  respect  to  the  boundary  of  lands,  and  which  may 
very  properly  be  considered. 

An  important  case  came  before  the  Supreme  Court  of  the  State 
of  Maine  a  few  years  since,  wherein  it  was  held  that  the  line  of  a 
parcel  of  land,  to  run  paralled  with  and  at  a  specified  distance  from 
the  south  side  of  a  building,  should  be  measured  from  the  corner- 
board  of  that  side,  and  not  from  the  outer  edge  of  the  eaves 
{Pro2)rletors  of  Center  St.  Church  v.  Machias  Hotel  Company,  bi 
3lame  7?.,  413).  This  establishes  a  principle  of  construction 
which  may  often  be  applied,  and  the  doctrine  of  the  case  is  doubt- 
less correct.  If  the  boundary  was  the  side  of  the  building,  over 
which  the  eaves  projected,  ]>robably  the  courts  would  hold  that 
the  parties  intended  the  outer  edge  of  the  eaves  to  be  the  line 


168  LAW  OF  BOUyDARIES. 

The  same  court  held,  about  the  same  time,  that  the  word  "from  '* 
an  object,  or  "  to"  an  object  used  in  a  deed  exchides  the  terminus 
referred  to.  To  illustrate ;  the  case  in  the  deed  was  expressed  as 
follows  :  "  Thence  easterly,  about  thirty-five  feet,  to  land  now  or 
formerly  owned  by  I.  B. ;  thence  by  I,  B.'s  land,"  etc. ;  and  pre- 
viously thereto,  the  grantor  in  such  deed  had  conveyed  to  I.  B., 
by  deed  of  M-arranty,  not  recorded,  a  two-foot  strip  of  land  off 
from  the  side  of  his  land  adjoining  I.  B.'s  land;  and  it  was  held 
that  it  would  not  be  presumed  that  the  grantor  intended  fi-aud 
upon  his  prior  grantee,  and  the  description  was  held  to  exclude 
the  two-foot  strip ;  I.  B.  not  owning  it  the  less  because  his  deed 
was  unrecorded  {Bonyiey  v.  3IorrfU,  52  Jfaine  7?.,  252). 

The  Supreme  Judicial  Court  of  Massachusetts  has  held  that  a 
deed  of  land  bounded  "easterly  by  said  thirty-foot  street  by  a  line 
which  is  parallel  with  and  190  feet  distant  from  B.  street,-'  B. 
street  being  160  feet  eastwardly  from  the  thirty-foot  street,  con- 
veyed no  part  of  that  street  {Brahiard  v.  Boston,  etc.,  B.  B.  Co., 
12  Gixiifs  B.,  407).  And  the  same  court  has  since  held  that  a 
point  of  land,  described  in  a  deed  as  being  "five  rods  due  south  of 
B.'s  south-east  corner  bound,"  was  to  be  located  by  measurement 
from  the  south-east  corner  of  the  land  actually  owned  by  B.,  when 
such  corner  was  difterent  from  the  corner  of  land  occupied  by  him 
(  WeUfieet  v.  Ttuto,  9  Allen's  B.,  137). 

The  Supreme  Court  of  Delaware,  in  a  case  before  it  invohnng 
the  construction  of  a  conveyance,  held  that  the  words  in  a  deed, 
"  together  with  all  and  singular  the  mill,  house,  mill-dam,  races, 
flood-gates,  mill-wlieels,  stones,  hoppers,  bolting  charts  and  cloths, 
waters,  water-coui-ses,  and  other  appurtenances,"  did  not  pass  the 
title  to  the  bed  of  the  mill-pond  {^Bartholomew  v.  Edwards,  1 
Houston's  B.,  17). 

Where  a  description  of  lands  in  a  mortgage  deed  was  in  the 
words  '^  the  south-west  quarter  of  section  31,  etc.,  and  also  the 
following  tract  adjoining  the  above-described  tract  on  the  west ; 
to  wit,  forty  rods  in  widtii  off"  of  the  east  side  of  the  north-east 
quarter  of  section  36,  etc.,  which  said  tract  extends  forty  rods  in 
width  as  aforesaid,  and  from  the  north  line  to  the  south  line  of 
said  last-mentioned  quarter-section;"  the  Supreme  Court  of  Indi- 
ana, before  whom  the  conveyance  came  for  interpretation,  held 
tiiat  the  tract  forty  rods  wide  was  conveyed  which  adjoined  iha 
first-mentioned   section  on  the  west,  and  disregarded  the  other 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  169 

description,  where  the  tract  forty  feet  wide  off  of  the  east  part  of 
the  north-east  quarter  of  section  36  did  not  adjoin  said  south-west 
quarter  of  section  31  on  the  west  {Gray  v.  Stien,  24  Ind.  7?.,  174). 
The  Supreme  Conrt  of  Georgia  decided  that  a  deed  of  hind 
describing  the  granted  premises  as  "  lying  and  being  on  the  we^t 
side"  of  a  river  which  was  not  navigable,  conveyed  the  title  to  an 
island  in  the  river,  which  was  situate  west  of  the  main  channel 
{Sta'nford  v.  Mangin,  30  Geo.  R.,  355).  In  this  case  the  general 
doctrine  in  cases  of  land  bounded  generally  upon  an  unnavigable 
river  or  stream  was  applied,  although  the  language  of  the  descrip- 
tion was  somewhat  different  from  the  other  cases  referred  to 
wherein  the  doctrine  has  been  applied. 

The  Supreme  Court  of  Pennsylvania  held,  in  a  case  where  it 
appeared  that  a  portion  of  land,  on  the  bank  of  a  navigable  river, 
was  marked  in  the  town  plan  as  "  a  beach,"  and  dedicated  to  pub- 
lic use,  and  certain  lots  thereon  were  conveyed  by  deeds,  which 
called  for  the  "  beach  of  the  river"  as  one  of  theii-  boundaries, 
that  in  construing  other  deeds  for  lots,  which  in  terms  were 
bounded  by  "  the  river,"  they  were  to  be  so  far  controlled  by  the 
town  plan  as  to  fix  the  '-beach,"  and  not  the  river,  as  the  real  and 
proper  bonndary  ;  and  in  the  same  case  the  general  rule  was  laid 
down,  that  where  a  map  or  town  plan,  made  by  the  proprietor  of 
lands  on  which  a  town  is  located,  is  referred  to  in  a  deed  by  the 
proprietor,  for  one  or  more  of  the  town  lots,  it  becomes  a  material 
and  essential  part  of  the  conveyance,  and  has  the  same  force  and 
effect  as  if  incorporated  into  the  deed  {Birmingham  v.  Anderson, 
48  Penn.  R.,  253). 

Some  very  important  principles  in  respect  to  boundary  were 
recently  settled  by  the  Supreme  Court  of  the  United  States.  In 
the  case  before  the  court,  it  appeared  that  a  proprietor  who  had 
dedicated  a  street  to  the  public  use,  without  granting  the  fee,  con- 
veyed a  lot  bounded  on  the  street,  and  the  street  was  bounded  on 
the  opposite  side  by  Lake  Michigan.  The  court  held  that  the 
grantee  took  the  fee  to  the  center  of  the  street  upon  the  side 
adjoining  the  land  conveyed,  su])ject  to  the  right  of  way.  But, 
as  to  the" side  of  the  street  bounded  on  the  lake,  the  grantee  took 
nothing  by  his  deed  beyond  the  center,  while  the  fee  of  the  half 
bounded  by  the  lake  remained  in  the  proprietor,  subject  to  the 
easement.  And  it  was  further  held  that,  where  a  lake  boundary 
BO  'limits  a  street  as  to  reduce  it  to  less  than  half  its  regular  width, 
22 


170  i^TT  OF  BOUNDARIES. 

the  street  so  reduced  must  still  be  divided  by  its  center  line 
between  the  grantee  of  the  lot  bounded  by  it  and  the  original 
proprietor ;  and  further,  that  accretion,  by  alluvion,  upon  a  street 
reduced  by  a  lake  boundary  to  less  than  half  its  regular  Avidtli, 
belongs  to  the  original  proprietor  of  the  lot ;  in  whom,  subject  to 
the  public  easement,  the  fee  of  the  half  of  the  lake  remains.  The 
decision  of  the  case  involved  these  several  questions,  and  they 
were  carefully  examined  by  Chief  Justice  Chase,  who  gave  the 
opinion  of  the  court,  and  were  settled  as  above  stated  {Banks  v. 
Ogden,  2  Wall.  B.,  57). 

Another  important  case  was  disposed  of  by  the  same  court,  at 
the  same  term,  involving  principles  which  are  important  to  be 
noted.  The  conveyance  before  the  court  for  interpretation  was 
of  a  division  or  branch  of  a  canal,  "  including  its  hanks,  margins, 
tow-paths,  side-outs,  feeders,  basins,  right  of  loay,  dams,  loater- 
power,  structures,  and  all  the  appurtenances  thereunto  belonging." 
The  court  held  that  adjoining  parcels  of  land  belonging  to  the 
grantor,  which  were  necessary  to  the  use  of  the  canal  and  water- 
power,  and  were  used  with  it  at  the  time,  but  which  could  not  be 
included  in  any  of  the  terms  above,  in  italics,  passed  by  the  convey- 
ance. The  opinion  of  the  court  was  delivered  by  Mr.  Justice  Field, 
and,  as  he  gives  very  clear  reasons  for  the  ruling,  and  refers  to  author- 
ities upon  the  point,  it  may  be  well  to  give  an  extract  from  his  opin- 
ion. He  says:  "  The  objection  that  the  deed  does  not  cover  the  pre- 
mises in  controversy  rests  upon  the  fact  that  it  does  not  convey  the 
parcels  of  land,  for  which  the  action  is  brought,  by  specific  desig- 
nation and  description.  Such  designation  and  description,  though 
usual,  are  not  always  essential.  Land  will  often  pass  by  other 
terms.  Thus,  a  grant  of  a  messuage,  or  a  messuage  with  the 
appurtenances,  will  cany  the  dwelling-house  and  adjoining  build- 
ings ;  and  also  its  orchard,  garden  and  curtilage  {Shepard's  Touch- 
stone, 94).  The  true  rule  on  the  subject  is  this:  that  everything 
essential  to  the  beneficial  use  and  enjoyment  of  the  property  desig- 
nated is,  in  the  absence  of  language  indicating  a  different  inten- 
tion on  the  part  of  the  grantor,  to  be  considered  as  passing  by  the 
conveyance  {Sparks  v.  Hess,  15  California,  196).  Thus,  the 
devise  of  a  mill  and  its  appurtenances  was  held  by  Mr.  Jus- 
tice Story  to  pass  to  the  devisee  not  merely  the  building,  but  all 
the  land  under  the  mill  and  necessary  for  its  use,  and  commonly 
used  with  it  ( Whitney  v.  Olney,  3  Mason,  2S0).     So  a  convey- 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  171 

ance  '  of  a  certain  tenement,  beinf;^  one-lialf  of  a  corn-mil],  situ- 
ated' on  a  designated  lot,  'with  all  the  privileges  and  appurte- 
nances,' was  held  by  the  Supreme  Court  of  New  Hampshire  to 
pass  not  only  the  mill,  but  the  land  on  which  it  was  situated, 
together  with  such  portion  of  tlie  water  privilege  as  was  essen- 
tial to  its  use  {Gilsoii  v.  Brockway.,  8  Neio  Hampshire,  4Go). 
And  the  exception  of  a  factory  from  a  mortgage  deed  was  held, 
by  the  Supreme  Court  of  Massachusetts,  to  extend  to  the  land 
under  the  factory,  and  the  water  privilege  appurtenant  thereto. 
See,  also,  to  the  same  effect.  Wise  v.  W/ieeler  (6  Iredell,  196) ;  and 
Blaine's  Lessees  v.  Chamhers  (1  Sergeant  &  Rawle,  169).  *  *  * 
This  language  is  comprehensive  enough  to  carrj'  the  several  par- 
cels of  land  described  in  the  declaration  "  {8hnts  v.  Seidell's  Lessee, 
2  Wall.  B.,  177,  187,  188).  It  was  ably  argued  by  counsel  in  this 
case  that  the  court  could  not  hold  that  the  deed  carried  the  land 
in  question,  except  by  holding  that  it  passed  by  the  word  "appur- 
tenances ;"  but  it  does  not  appear  that  the  decision  was  placed 
upon  that  view.  Reference  was  made  by  counsel  to  the  well- 
settled  doctrine  "  that  lands  will  not  pass  by  the  word  appurte- 
nances;" and  then  he  proceeded:  "  To  insist  that  the  particular 
tracts  described  in  the  lease  are  appurtenant  to  some  one  or  more 
of  the  things  sold  by  the  State  would  be  even  more  absurd  than 
to  maintain  that  land  can  be  appurtenant  to  land.  It  would  be 
maintaining  that  land  can  be  appurtenant  to  a  mere  easement,  a 
right  of  way,  a  water-power,  or  a  stream  of  water,  natural  or  arti- 
ficial. The  lands  demised  cannot  be  '' appurtenanV  io  the  hed 
of  the  canal,  nor  to  its  hanks,  nor  its  hasins,  nor  its  toio-paths,  nor 
its  side-cuts,  nor  W.^  feeders,  nor  its  hasins,  nor  the  right  of  way, 
nor  the  dams,  nor  the  water-power,  nor  the  structures,  specilied 
in  the  act."  This  reasoning  is  very  good  if  it  was  pertinent  to 
the  case  in  hand.  But  the  court  was  of  the  opinion  that  the 
parcels  of  land  in  question  passed  by  the  deed,  and  the  reasons  are 
assigned  in  the  extract  from  the  opinion  above  quoted. 

A  case  was  decided  by  the  Supreme  Court  of  Maine,  wherein 
it  appeared  that  A.  conveyed  to  B.  a  portion  of  a  lot  of  land  of  a 
certain  width,  and  extending  so  far  in  length  "as  will  make  pre- 
cisely twenty  acres;"  and  immediately  afterward  A.  and  B.,  by 
mutual  agreement  and  survey,  marked  the  lines  and  curves  of  the 
granted  premises  by  spotted  trees  and  stakes.  The  next  year  A. 
conveyed  to  C.  the  remainder  of  the  lot,  more  or  less,  bounding' 


172  LAW  OF  BOUNDARIES. 

it  on  the  east  "  by  the  west  line  of  B.'s  land."  B.  and  C.  occu 
pied  their  several  pai'cels,  according  to  the  line  marked  b}'  A.  and. 
B.,  fo,r  about  twenty-live  years.  In  the  mean  time  B.,  by  the 
decision  of  a  lawsuit  between  him  and  a  third  party,  had  his  lot 
widened  on  one  side  four  rods,  and,  in  consequence,  relinquished 
two  rods  on  the  other  side.  C,  without  an^'  suit,  conformed  his 
lines  to  B.'s  new  ones.  But  the  division  line  between  B.  and  C, 
and  their  occupation  of  their  respective  parcels,  continued  as 
before.  In  an  action,  brought  by  C.'s  grantee,  to  recover  of  B.'s 
grantee  all  of  the  original  lot  except  twenty  acres,  the  court  held 
that  the  parties  intended,  in  the  conveyance  from  A.  to  C,  to 
bound  the  land  conveyed  by  the  well-known  marked  line  then 
existing,  and  not  by  an  imaginary  M-est  line  of  B.'s  land,  to 
include  therein  "precisely  twenty  acres"  {Fought  v.  Ilohoay^  50 
Maine  IL,  24).  And  the  same  court,  in  giving  construction  to  a 
deed  conveying  a  grist-mill,  with  the  land  and  privileges,  where  it 
was  situated,  "  necessarj^  for  and  attached  to  said  grist-mill,  hereby 
meaning  to  convey  all  tiie  lands  and  mill  privilege  (not  heretofore 
sold  by  us)  on  the  farm  connected  with  said  grist-mill  and  privi- 
lege," held  that  the  eifect  of  the  deed  was  to  convey  all  the  land 
and  privilege  Hot  before  sold  by  the  grantor,  and  connected  with 
the  mill  and  privilege,  and  not  merely  what  was  strictly  necessary 
for  and  attached  to  the  mill.  But  it  was  said  that  if  the  parties 
had,  by  their  acts  and  occupation,  treated  the  grant  as  embracing 
not  all  the  lands  and  privilege  on  the  dam  not  previously  sold, 
but  all  the  lands  and  privilege  connected  with  the  grist-mill  not 
previously  sold,  the  court  would  not  interfere  to  control  their  con- 
struction {Esty  V.  Baker,  50  Maine  Ji.,  325). 

The  Supreme  Court  of  Vermont  has  held  that  a  deed  which 
described  the  land  conveyed  as  "  lots  No.  22  and  23,  in  the  second 
division  of  lots  in  said  Chelsea,  and  is  all  and  the  same  land 
which  we  now  occupy  and  improve  as  our  home-farm,"  passed  the 
whole  of  the  land  occupied  as  "  our  home-farm,"  although  a  part 
of  it  was  not  included  in  said  lots  No.  22  and  23  {Sjjlllery.  Scrih- 
ner,  36  Vt.  B.,  245). 

The  Supreme  Judicial  Court  of  Massachusetts  disposed  of  a  case 
in  which  the  construction  of  a  deed  of  land  was  involved,  where 
the  deed,  in  describing  the  granted  premises,  after  naming  a  cer- 
tain monument,  added:  "thence  running  southerly  l)y  land 
improved  by  A.  to  the  road,"  and  it  appeared  that  a  straight  line  to 


COKSTRUCTIOJSr  OF  PARTICULAR    GRANTS.  173 

the  road,  running  a  little  east  of  south,  would  include  the  land 
improved  by  A.  in  the  granted  premises,  ^vhile  a  line  running  a 
little  south  of  west,  to  the  comer  of  the  land  improved  by  A.,  and 
thence  along  the  line  of  said  land  a  little  east  of  south  to  tlie  road, 
at  a  point  nearly  south  of  the  monument,  would  exclude  said  land 
from  the  granted  premises.     The  court  held  that  the  latter  con- 
struction was  to  be  adopted  as  the  true  one,  and  the  case  was 
accordingly  decided  upon  that  view  {Bond  v.  Fay,  8  Allen's  R., 
212).     And  the  same  distinguished  court  disposed  of  another  case 
at  the  same  term,  which  involved  the  rights  of  a  grantee  in  a  deed 
depending  entirely  upon  the  proper  construction  to  be  put  upon 
the  conveyance.     The  deed  was  for  a  certain  lot  of  land,  with  a 
store  thereon,    "  together  with  all   the  rights,    easements,  privi- 
leges and   appurtenances   thereto   belonging,   and   now    enjoyed 
therewith;   being  the  same  premises  which   A.  B.  conveyed  to 
me."     The  question  arose  upon  the  words  quoted,  and  the  court 
held  that  the  deed  did  not  include  a  lot  of  land  in  the  rear  of  the 
described  premises,  which  was  not  conveyed  by   A.  B.  to  the 
gi-antor,  although  it  appeared  that  the  grantor  owned  tlie  same, 
and  had  built  thereon  a  store,  connected  with  the  store  on  the 
described  premises  by  a  covered  bridge,  and  had  agreed  with  the 
owners  of  adjoining  lots  that  such  rear  store  should  not  be  rented 
or  occupied  by  any  person,  except  the  owner  or  occupants  of  the 
front  store,  as  an  appendage  to  the  same,  and  that  no  building 
should  ever  be  erected  upon  such  rear  lot,  except  of  a  specified 
heio-ht.     Chapman,  J.,  delivered  the  opinion  of  the  court,  in  the 
course  of  which  he  enunciated  principles  and  referred  to  authorities 
which  are  important  to  note.     He  says :  '^  The  last  clause  excludes 
the   demanded   premises:    for  it  is   conceded   that  the  deed  of 
Dwight  and  others  did  not  include  them.     If,    therefore,  they 
passetl  by  the  mortgage,  it  must  be  under  the  clause  granting  all 
the    'rights,    easements,    privileges   and   appurtenances    thereto 
belonging,  and  now  had  and  used  and  enjoyed  therewith.'     The 
questfon  arising  in  this  case  is,  whether  the  premises  were  con- 
veyed by  these  words.     All  these  words  have  a  well-defined  legal 
feign iiication.     The  word  'rights,'  as  applied  to  property,  refers  to 
the  free  use,  enjoyment  and  disposal  of  it   (1  Bl.  Com.,  13S).     It 
also  includes  the  estate  in  esse  in  conveyances  {Co.  Litt.,  345  J.). 
It  is  often  included  in  the  word  '  title,'  which  is  the  more  general 
word  {Il>j.     Such  being  its  definition,  it  cannot  be  construed  to 


174  i^TF   OF  BOUNDARIES. 

include  an  additional  tract  of  land.  The  next  word  used  is  '  ease- 
ments,' and  it  is  contended  that  the  fee  of  land  passes  by  this 
word.  If  the  demanded  premises  are  included,  it  must  be  by 
virtue  of  the  phrase  '  privileges  and  appurtenances.'  The  last  word 
is  the  one  relied  on  by  the  tenants.  It  is  conceded  that  geneially 
one  tract  of  land  cannot  pass  as  an  appurtenance  to  another  tract. 
This  point  is  discussed  in  Leonard  v.  White  (7  Mass.,  6).  And  in 
Tyler  v.  Hammond  (11  Plclc.,  124),  Wilde,  J.,  says  it  is  well  set- 
tled that  land  cannot  pass  as  appurtenant  to  land.  The  technical 
signification  of  the  word  'appurtenances'  is  not  large  enough  to 
include  a  distinct  parcel  of  land,  which  is  not  described  in  the  deed. 
In  construing  a  deed,  the  courts  seek  to  ascertain  the  intention  of 
the  grantor,  and  construe  his  language  most  strongly  against  him- 
self ;  but  the  intention  is  to  be  gathered  from  the  language  of  the 
instrument,  and  the  words  he  uses  are  to  be  taken  in  their  usual 
legal  signification,  unless  it  appears  from  the  connection  in  which 
they  are  used  that  he  has  attaclied  a  different  meaning  to  them. 
It  has  accordiiigly  been  held  that,  in  a  devise,  land  may  pass 
under  the  word  'appurtenances,'  the  intention  of  the  testator 
being  gathered  from  all  parts  of  his  will,  and  from  his  own  habits 
in  respect  to  the  use  of  the  property  {Otis  v.  Smith,  9  Pid\,  923). 
The  courts  seem  to  regard  a  will  as  different  from  a  deed.  It  is  so 
in  two  respects  :  1  A  testator  is  not  presumed  to  use  language  as 
accurately  as  a  grantor ;  2.  A  will  is  presumed  to  dispose  of  all  the 
estate  of  the  testator,  and,  if  there  is  no  other  disposition  of  the  fee 
of  that  which  is  given  as  an  appurtenance,  a  presumption  is 
raised  that  the  word  was  intended  to  include  the  fee. 

"  But  it  is  also  true  that,  in  a  grant,  the  words  will  be  construed 
according  to  the  intent  of  the  parties  as  manifested  by  the  whole 
instrument,  and  the  word  'appurtenances'  is  subject  to  tliis 
rule  of  construction  ;  so  that,  if  it  is  apparent  to  the  court  that  the 
grantee  used  it  to  express  an  idea  different  from  its  technical  sig- 
nification, they  will  construe  it  accordingly  {Whitney  v.  OIney,  3 
Mason,  280.  and  cases  cited;  2  Washburn  on  Heal  Prop.,  627). 
In  Hill  V.  West  (4  Yeates,  142)  this  principle  of  interpretation 
was  carried  so  far,  in  respect  to  a  deed  made  in  1704,  that  city  lots, 
laid  out  under  Penn's  survey  in  the  Liberties  of  Philadelphia, 
were  held  to  pass  as  appurtenant  to  a  large  tract  of  land  in  the 
county  at  a  considerable  distance  from  them.  But  the  case  was 
peculiar,  and  is  valuable  only  as  an  extreme  illustration.     Where 


COKSTRUCTIOX  OF  PARTICULAR    GRAXTS,  175 

it  is  not  clear  that  a  grantor  used  a  technical  word  in  an  unusual 
sense,  it  is  just  toward  all  parties  to  presume  that  he  used  it  in 
its  ordinary  and  technical  sense. 

"It  is  held  that  flats  may  pass,  in  the  partition  of  real  estate  by 
commissioners,  under  the  phrase  'a  wharf  and  dock,  with  all  the 
privileges  and  appurtenances  thereto  belonging'  [Doane  v.  Broad 
Street  Association,  6  Mass.,  332).  But  the  court  did  not  regard 
the  wharf  as  land,  but  as  a  structure  erected  on  the  land  ;  so  that 
land  might  pass  with  it  as  appurtenant  to  it,  on  the  same  ground 
that  it  will  pass  with  a  mill  or  messuage.  In  that  case  it  was 
clear,  from  the  return  of  the  commissioners,  that  they  intended  to 
assign  the  flats  with  the  wharf.  In  Ashley  v.  Eastern  Railroad 
(5  Met.,  368)  a  deed  of  a  wharf  is  held  to  convey  the  adjoining 
flats  as  appurtenant.  But  in  all  these  cases  the  land  passes 
M'itli  the  thing  described  as  parcel  rather  than  appurtenant 
(2  Washburn  on  Real  Prop.,  627).  The  deed  of  mortgage 
conveys  the  land  with  the  new  store  thereon ;  and  it  is  neces- 
sary to  consider  whether  the  store  on  the  land  mortgaged  was 
60  connected  with  the  store  on  the  demanded  premises  that 
it  can  be  regarded  as  parcel  of  it,  and  to  pass  together  with 
the  land  on  which  it  stood.  *  *  *  y{\q  fact  that  the 
back  store  could  not  be  approached  for  ordinary  use,  except 
through  the  front  store,  has  some  tendency  to  show  that  he 
intended  to  convey  both.  '  But  this  fact  is  not  sufficient  to  control 
the  language  of  the  deed ;  especially  as  he  had  provided  a  passage- 
way to  the  back  store  independently  of  the  front  store,  though 
the  purposes  for  which  he  might  approach  it  and  occupy  it  were 
very  limited.  Such  a  restriction  upon  its  use  may  aff'ect  its  value, 
but  that  consideration  is  not  very  important  in  construing  the 
deed.  There  is  nothing,  either  in  the  words  of  the  instrument  or 
the  situation  of  the  property,  to  control  the  express  declaration 
that  the  property  conveyed  by  the  mortgage  was  the  same  that 
Messrs.  Dwight  and  others  conveyed  to  him"  {Ammidown  v. 
Granite  Bank,  8  Allen's  R.,  285,  290-293).  But  the  same  dis- 
tinguished court  held,  at  the  same  term,  that  a  deed  of  a  certain 
described  lot  of  land,  "together  with  all  the  dwelling-house  and 
building,  with  the  appurtenances,  situate  thereon  or  thereto 
belonging;  to  have  and  to  hold  the  above  granted  premises, 
with  the  privileges  and  appurtenances  thereto  belonging,"  included 
a  small  lot  of  land  adjoining  the  granted  premises,  which  waa 


17(>  LAW   OF  BOUyDARIES. 

liabituallj  used  with  the  dwelling-house,  and  was  reasonably 
necessary  to  be  lield  in  connection  with  it.  Chapman,  J.,  also 
delivered  the  opinion  of  the  court  in  this  case,  and  said:  "AVe 
must  apply  to  this  deed  the  well-established  rule  of  construction 
stated  in  Salishury  v,  Andreios  (19  Pick.,  253),  that  every  word 
shall  be  presumed  to  have  been  used  for  some  purpose,  and  shall 
have  some  force  and  effect  if  it  can.  According  to  the  strict  tech- 
nical signification  of  the  word,  land  cannot  be  appurtenant  to  a 
bank.  But  where  a  bank  is  conveyed  with  its  '  appurtenances,' 
the  word  must  refer  to  land  if  it  have  any  meaning ;  and  the 
grantor  must  liave  used  it  to  indicate  land.  The  older  authorities 
on  this  subject  are  collated  in  Smith  v.  Martin  (2  Saund.,  400, 
note)]  and  they  hold  that  at  least  the  garden,  curtilage  and  cose 
adjoining  the  house  will  pass.  Strictly,  they  pass  as  parcel  of  the 
house.  The  modern  authorities  are  at  least  no  more  strict  in 
their  definitions  of  the  word  appurtenances  than  the  more  ancient 
ones.  Such  being  the  rule  of  construction,  it  must  be  held  that 
the  demanded  premises  passed  with  the  house ;  for  they  consisted 
of  a  small  close  or  curtilage  adjoining  it,  prepared  with  considera- 
ble pains  to  be  used  with  it,  habitually  used  with  it,  and  reasonably 
necessary  to  be  held  in  connection  with  it  and  with  the  passage 
in  the  rear,  which  was  appurtenant  to  the  estate  "  {Ammidoion  v. 
Ball,  8  Allen's  R.,  293,  295). 

A  case  recently  came  before  the  Supreme  Court  of  North  Caro- 
lina, turning  upon  the  proper  construction  to  be  put  upon  the 
language  in  a  conveyance.  The  beginning  corner  of  the  deed 
was  on  a  private  avenue,  and  the  other  calls  of  the  deed  came 
back  to  the  mouth  of  the  avenue,  and  "  thence  down  the  said 
avenue  to  the  beginning,  reserving  forever  twenty  feet  for  my 
avenue."  The  court  held  that  this  reservation  explained  the 
meaning  of  the  grantor  to  be  to  run  to  the  middle  of  the  avenue, 
and  thence  down  it  in  the  middle  to  a  point  opposite  the  begin- 
ning ;  thence  to  the  beginning  {Hayes  v.  Askew,  8  Jones  Lam 
li.,  226).  And  the  same  court  held  that,  where  the  second  call 
of  a  boundary  is  clearly  established,  the  first  may  be  ascertained 
by  running  the  course  reversed,  and  measuring  on  it  the  distance 

called  for.     In  the  deed  before  the  court  a  white was  called 

for  as  a  corner,  and  a  white-oak  was  pointed  out  nearl}'  in  the 
course,  by  a  marked  line  leading  to  it;  and  there  were  other  cir- 
cumstances going  to  show  that  this  white-oak  was  the  white 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  177 

called  for  as  the  corner.  The  court  held  that  it  was  a  proper 
question  to  leave  to  tlie  jury,  whether  the  white-oak  was,  in  fact, 
the  corner  intended  {Dohson  v.  Finley,  8  Jones  Law  R.,  495). 

A  case  was  lately  decided  by  the  Supreme  Court  of  California, 
wliere  the  deed  described  the  land  conveyed  as  one  league  in 
amount,  and  bounded  on  one  side  by  a  stream  not  navigable  ;  on 
the  second  side  by  a  line  starting  from  the  river,  in  the  direction 
of  a  line  directly  crossing  the  line  of  the  river  ;  on  the  third  side, 
by  a  line  that  ran  one  league  parallel  with  the  river;  and  on  the 
fourth  side  by  a  line  that  ran  parallel  with  the  line  on  the  second 
side.  The  court  held  that  the  first  line  was  to  follow  the  mean- 
derings  of  the  river  until  a  point  in  the  river  was  reached  one 
league  distant,  when  reduced  to  a  straight  line,  from  the  point  of 
beginning  ;  that  the  second  and  fourth  lines  were  to  run  parallel 
with  each  other,  at  right  angles  with  such  straight  line,  and  that 
the  third  line  was  to  run  parallel  with  the  river  in  all  its  niean- 
derings  {lUcU  v.  Coleman,  25  Cal.  R.,  122).  And  the  same  court 
disposed  of  anotlier  case,  wherein  it  appeared  that  a  deed  conveyed 
nine  leagues  of  land,  commencing  at  a  point  on  a  certain  river, 
"  two  leao-ues  in  length  along  said  river  below  a  point  on  the  same 
made  by  the  intersection  with  the  river  of  the  lower  or  southerly 
boundary  line  of  a  tract  of  land  on  said  river  known  as  the 
rancho  of  Larkin's  children  ;  thence  running  southerly  (its  eastern 
boundary  for  the  whole  length  being  said  river)  nine  leagues,  more 
or  less,"  etc.,  reciting  that  the  whole  of  the  B.  grant  was  intended 
to  be  conveyed,  "  with  the  exception  of  a  tract  of  two  leagues  in 
length,  along  and  with  said  river,  on  the  upper  or  northerly  part 
of  said"  B.' grant.  The  court  held  that  the  two  leagues  along, 
the  river  should  be  measured  in  a  straight  line,  and  not  by  follow- 
in  <t  the  meanderings  of  the  river  {Klniball  v.  Semj)k,  25  Cal.  R., 

4^0).  . 

A  case  lately  came  before  the  Supreme  Court  of  Missouri  call- 
ing for  the  interpretation  of  a  conveyance  of  land.  A  deed  from 
a',  described  the  land  as  "the  upper  half  tract  of  land  purchased 
by  A.  from  C,"  "  which  tract  of  land  now  intended  to  be  granted 
shall  contain  315  arpents,  to  be  bounded —  north  by  the  Missouri 
river,  west  by  land  of  S.,  south  by  land  of  J.,  and  east  or  on 
the  lower  side  by  a  line  to  be  run  parallel  to  the  lower  line  of  the 
tract  of  630  arpents  bought  of  C,  and  which  line  is  hereafter  to 
be  run,  and  is  to  divide  the  land  now  granted  from  the  land  of 
23 


X78  LAW   OF  BOUNDARIES. 

A."  The  tract  contained  more  than  630  arpents.  The  court  held 
that  the  deed  conveyed  one-half  of  the  tract,  to  be  bounded  by 
the  line  to  be  run.  And  the  court  also  declared  that  known  and 
lixed  monuments  will  control  courses  and  distances  given  in  a 
deed,  and  metes  and  bounds  will  include  tlie  lands  within  them, 
though  the  quantity  varies  from  that  expressed,  unless  it  can  ba 
gathered  from  tlie  whole  deed  that  it  was  clearly  the  intent  of 
the  grantor  to  give  only  a  definite  quantity  {Evans's  Administra- 
tor V.  Tetnple,  35  Mo.  R.,  494). 

In  a  case  before  the  Supreme  Judicial  Court  of  Massachusetts, 
it  appeared  that  A.  conveyed  to  B.  a  lot  of  land  bounded  "  south 
on  a  passage-way  twenty  feet  wide ; "  "  also,  such  rights  on  tlie 
beach,  lying  directly  between  the  passage-way  and  the  sea,  as  were  " 
conveyed  to  the  grantee  by  F.,  by  deed  which  passed  the  beach  as 
appurtenant.  B.  conveyed  to  C.  this  lot,  describing  it  as  "  bounded 
south-easterly  on  a  passage-way,"  and  as  "  entitled  to  the  privilege 
mentioned  in  a  deed  from  F.  to  A.,  to  which  reference  for  further 
particulars  may  be  had."  Tlie  court  held  that  the  beach  passed 
under  both  deeds  {Cooh  v.  Harrington,  10  Graifs  R.^  70).  And 
in  the  same  court,  at  a  later  term,  a  case  was  decided  in  which 
the  premises  granted  in  the  deed  before  the  court  were  described 
as  beginning  on  a  street ;  thence  running  north  ten  rods  nineteen 
links  ;  thence  east  122  feet  to  the  southerly  corner  of  land  of  A. 
B. ;  thence  running  south  ten  rods  to  the  street ;  and  thence  to 
the  place  of  beginning.  This  description  was  erroneous.  The 
southerly  corner  of  A.  B.'s  land  was  only  seven  rods  from  the 
street ;  in  order  to  reach  that  corner  by  the  courses  described,  the 
first  line  should  have  been  but  seven  rods  and  nineteen  links  in 
length ;  and  the  first  and  second  lines,  if  run  out  according  to  the 
courses  and  distances  given,  would  include  A.  B.'s  land,  leading 
to  his  northerly  corner,  which  was  three  rods  from  his  southerly 
corner.  The  court  held  that  the  reference  to  A.  B.'s  southerly 
corner  must  prevail,  and  that  the  distances  mentioned  in  the  first 
and  third  lines  must  be  rejected  {George  v.  Wood,  7  Allen^s  R., 
14). 

An  interesting  case  came  before  the  Supreme  Court  of  Ver- 
mont, not  many  years  since,  involving  the  boundaries  of  several 
parcels  of  land  described  in  a  deed.  One  piece  of  land  was 
described  as  follows :  "  Beginning  on  the  west  side  of  the  road  at 
ithe  end  of  a  wall,  running  westerly  on  said  wall  and  in  a  straight 


COXSTRUCriOX    OF  PARTICULAR    GRAXTS.  179 

line  tlierewith  to  the  west  line  of  lot  No.  3  ;  tlience  on  said  west 
line  to  the  center  line  of  said  lot  No.  3  ;  tlience  on  said  center 
line  to  the  road;  thence  on  said  road  to  the  place  o^  beginning." 
The  conrt  held  that  the  west  line  of  the  land  extended  to  the 
middle  of  the  highway. 

Another  piece  was  described  as  follows :  "  On  the  south  side  ot 
the  road  opposite  to  the  last-mentioned  piece  fenced  on  two  sides, 
being  a  ridge  of  land  lying  between  said  road  and  the  center  line 
of  lo't  No.  3,  to  extend  so  far  east  as  to  make  just  five  acres." 
The  court  held  that  the  line  extended  to  the  middle  of  the  high- 
way.    And  another  piece  was  described  as  follows  :  "  Opposite  to 
the  last-mentioned  piece  on  the  east  side  of  said  road,  within  the 
fences  or  wall."     The  court  held  that  inasmuch  as  it  in  fact  was 
bounded  on  the  highway,  though  not  so  described,  taken  in  con- 
nection with  the  lact   that   the  three  pieces  were   all   conveyed 
to-ether,  it  must  be  deemed  to  have  been  the  intention  of  the 
grintor  to   convey  to   the  middle   of  the  highway.     The  court 
declared  the  rule  in  the  case,  that  where  land  is  bounded  "  upon,' 
"on"  or  "along"  a  highway,  the  presumption  is  that  the  line 
extends  to  the  middle  of  the'highway.     And  that  if  the  language 
of  a  deed,  describing  land  conveyed  bounded  upon  a  highway, 
leaves  it  doubtful  whether  the  grantor  intended  the  line  to  be  in 
the  center  or  on  the  side  of  the  highway,  the  boundary  will  be 
construed  to  be  the  center  of  the  road  {Marsh  v.  Burt,  34=  It.  B., 
289). 


CHAPTER  XY. 

FURTHER  CASES  PASSED  UPON  BY  THE  COURTS,  GIVING  CONSTRUCTION 
TO  PARTICULAR  CONVEYANCES  IN  RESPECT  TO  BOUNDARY  -  SOME 
CASES,  BOTH  ENGLISH  AND  AMERICAN —  CASES  MISCELLANEOUSLY 
STATED. 

There  are  still  further  cases  proper  to  be  referred  to  upon  the 
subject  of  the  last  preceding  chapters,  English  as  well  as  Ameri- 
can To  begin  with  a  case  before  the  English  courts.  A  convey- 
ance by  the  lord  of  part  of  the  demesne  of  the  manor  described 
the  land  as  "all  that  piece  of  meadow  ground  commonly  known 
by  the  name  of  Chamberlain's  field,  containing,  by  estimation, 


180  LAW   OF  BOUNDARIES. 

%  a.,  3  r.,  35  p.,  be  the  same  more  or  less,  and  abutting  towards 
the  west  on  Hall  lane."  Tlie  deed  also  contained  the  following 
general  words  :  "  Together  with  all  ways,  etc.,  and  appurtenances 
to  the  said  messuage,  etc.,  lands,  etc.,  belonging,  or  therewith 
used,  possessed,  occupied,  etc."  Upon  a  special  case  it  appeared, 
before  the  Court  of  Common  Pleas,  that  the  grantee  of  Chamber- 
lain's field,  and  those  claiming  under  him,  had  for  sixty  years 
used  a  small  strip  of  land,  lying  between  the  field  and  Hall  lane, 
as  a  place  of  deposit  for  manure ;  that  about  the  year  1841  the 
then  owner  cut  and  converted  to  his  own  use  a  tree  which  grew 
thereon,  and  that  in  1843  he  inclosed  the  strip.  On  the  other 
hand  there  was  evidence  that  the  lord  of  the  manor  had,  both 
before  and  since  the  date  of  the  conveyance,  exercised  various  acts 
of  ownership  by  making  grants  thereof,  and  giving  to  the  owners 
of  the  adjoining  lands  licenses  to  inclose,  over  other  similar  strips 
of  land  by  the  roadside,  in  otlier  parts  of  the  manor,  the  nearest 
of  wliicli  was  about  three-quarters  of  a  mile  distant  from  the  spot 
in  question.  The  court  held  that  the  conveyance  of  Chamber- 
lain's field  was  sufficient  to  pass  to  the  grantee  the  slip  of  land 
beyond  the  fence,  and  the  soil  to  the  center  of  Hall  lane  adjoin- 
ing. And  the  court  held,  also,  that,  assuming  the  language  of 
the  deed  to  be  doubtful  or  ambiguous,  the  evidence  of  user  by  the 
grantor  and  those  claiming  under  him  was  sufficient  to  outweigli 
the  presumption  in  favor  of  the  lord,  arising  from  the  acts  of 
ownership  by  him  on  other  parts  of  the  waste  of  the  manor  simi- 
larly situated  {Simpson  v.  Dendy,  8  Com.  Bench  i?.,  iV.  S.,  433). 
And  the  same  case  came  before  the  Exchequer  Chamber  in  error, 
where  the  judgment  of  the  Court  of  Common  Bench  was  affirmed  ; 
the  former  court  holding  that  strips  of  land  lying  along  a  high- 
way, though  indirectly  connected  with  parts  of  the  waste,  may 
well  pass,  under  a  conveyance  of  the  adjacent  inclosure,  though 
The  deed  purported  to  state  the  quantity  of  acres  within  the  fences 
that  were  therein  passed,  if  it  had  the  words  "more  or  less" 
added ;  Pollock,  Ch.  B.,  stating,  however :  "  This  is  much  more 
a  matter  of  fact  than  of  law.  I  doubt  very  mUch  whether  there 
can  be  an  appeal  on  a  matter  of  fact ;  and,  at  any  rate,  unless 
there  is  something  very  strong  to  the  contrary,  we  ougbt  to  affirm 
the  verdict  for  Simpson,  We  are,  therefore,  all  of  opinion  that 
the  judgment  of  the  court  below  must  be  affirmec?  '  (Dendy  v. 


COXSTRUCTIOX  OF  PARTICULAR    GRANTS.  181 

Shnj?so7i,  10  Com.  Be)ich  B.,  H.  S.,  883 ;  S.   C,  7  Jur.,  JV.  S., 
1058). 

The  Supreme  Jiidicinl  Court  of  Massachusetts  has  decided  that 
a  convejauce  of  land,  "  begininng  at  an  angle  in  the  stonewall 
on  the  easterlj'  side  of  the  aforesaid  road  ;"  thence  running  around 
the  rear  of  the  lot  granted  "  to  a  stake  and  stones  at  the  aforesaid 
road ;  thence  northerly  on  the  line  of  said  road  to  the  first  men- 
tioned bound,"  excluded  tlie  road  {S»iUh  v.  Slociwib,  9  Grays 
It.,  30).  But  the  same  court  held  that  a  deed  of  land,  bounded 
"  westerly  by  P.'s  mill-pond,"  which  had  been  artificially  created 
by  erecting  a  dam  across  a  stream,  and  through  which  the  thread 
of  the  stream  had  always  been  apparent,  passed  the  land  to  the 
thread  of  the  stream  {Phbiney  v.  Watts,  9  Gray''s  12 .,  269). 
The  same  court  decided  another  interesting  case,  which  is  reported 
in  the  same  volume,  and  which  invoh^ed  the  construction  of  a 
deed  of  land.  The  land  conveyed  was  described  in  the  deed ; 
after  an  accurate  description  of  its  boundaries  from  its  northern 
extremity  around  its  western  and  southern  sides  to  a  point  on  the 
east  at  the  K.  road ;  "  thence  turning  and  running  northerly, 
bounding  easterly  by  said  road  until  it  comes  to  land  of  B. ;  thence 
turning  and  running  westerly  by  land  of  said  B.  until  it  comes  to 
the  south-easterly  corner  of  an  acre  lot "  included  in  the  land  con- 
veyed ;  '•  thence  turning  and  running  northerly,  bounding  easterly 
by  said  B.'s  land  to  the  W.  road;  thence  turning  and  running 
westerly,  bounding  northerly  by  said  road  to  the  place  of  begin- 
ning."' It  appeared  that  the  K.  road  extended  north-east wardly 
until  it  joined  the  W.  road,  which  ran  from  north-east  to  south- 
west. On  the  south-westerly  side  of  the  W.  road,  between  that 
junction  and  the  point  of  beginning  of  the  description,  were  three 
lots,  equal  in  depth  ;  the  widest  known  as  the  L.  lot;  next  the  K. 
road;  then  a  lot  of  B.,  and  then  the  acre  lot.  B.  owned  all  the 
laud  abutting  on  the  opposite  side  of  this  part  of  the  AV.  road. 
The  deed  referred  to  the  grantor's  sources  of  title,  and  to  a  plan, 
none  of  which  included  the  L.  lot.  The  court  held  that  the 
description  by  metes  and  l)ouu(ls  was  an  impossible  one  ;  and  that 
the  L,  lot  did  not  pass  by  tlie  deed  {Ide  v.  Peavce,  9  Gray's  A*., 
350).  And  the  same  court  held  in  another  case  that,  where  a 
boundary  line  in  a  deed  is  described  as  beginning  at  a  post,  and 
running  "  thence  southerly  in  as  straight  a  line  as  possible  over 
the  highest  part  of  said  hill,  to  a  large  white-pine  tree, "the  method 


182  i^TF   OF  BOUNDARIES. 

of  ascertaining  the  boundary  is  to  ran  a  straight  line  from  the 
post  to  the  highest  part  of  the  hill,  and  another  straight  line  from 
the  highest  part  of  the  hill  to  the  tree  {Ilovey  v.  Sawyer^  5  Allen'' s 
a.,  554). 

The  Supreme  Court  of  Mississippi  decided  a  case  depending 
upon  the  construction  of  a  conveyance  of  land,  where  the  deed 
called  to  commence  at  a  point  in  the  grantor's  northern  boundary 
line,  and  to  run  on  that  a  given  course  and  distance ;  and  the 
court  held  that  the  true  northerly  line  must  be  taken,  although  the 
grantor  may  have  had  a  survey  made  on  the  ground,  the  courses 
and  distances  of  which  survey  were  set  forth  in  the  deed,  and  the 
northern  line  of  such  survey  differed  entirely  from  the  true 
northern  line  of  the  tract  {Manter  v.  Picot,  33  Miss.  It.,  490). 
In  a  case  before  the  Supreme  Judicial  Court  of  Massachusetts,  it 
appeared  that  in  a  deed  of  a  parcel  of  land  115  feet  wide,  the 
grantors  "  reserved  to  themselves  a  common  right  in  a  passage- 
way fifteen  feet,  running  east  and  west  through  the  center  of  said 
parcel,  and  dividing  said  parcel  into  two  lots  of  fifty  feet  each." 
The  grantor  conveyed  to  A.  the  northern  lot,  "  bounded  southerly 
by  a  passage-way  fifteen  feet  wide ; "  and  afterward  conveyed  to 
B.  the  southern  lot,  "bounded  northerly  on  a  passage-way  fifteen 
feet  wide ;  together  with  my  right  in  common  in  said  passage-way 
of  fifteen  feet ; "  and  B.,  under  an  order  of  court  to  convey  all  his 
estate  in  the  premises,  conveyed  the  southerly  lot,  bounded 
"northerly  by"  said  "passage-way."  The  court  held  that  B. 
retained  no  right  in  the  soil  of  the  passage-way  (  Witislmv  v.  King, 
14  Gray's  E.,  321). 

A  case  of  some  interest  came  before  the  Supreme  Court  of 
E,hode  Island,  a  few  years  since,  involving  the  construction  to  be 
given  to  a  certain  term  used  in  a  deed  of  land  ;  and  it  was  hekl 
that  the  term  "  Great  Hill  or  Ledge  of  Lime  Kock,"  in  a  deed,  is 
to  be  construed,  in  order  to  ascertain  its  extent  and  limits,  in  the 
light  of  the  circumstances  attending  the  transaction,  according  to 
tl-.e  intent  of  the  parties,  derived  from  the  language  employed  b.y 
them,  rather  than  according  to  geological  notions,  however  correct, 
concerning  the  continuity  and  extent  of  the  stratum  of  lime  at  the 
place  referred  to  ;  and  wliere  the  hill  or  ledge  was  described  in 
tlie  deed  as  "lying  southerly  from  my  dwelling-house,"  and 
another  ledge  was  described  in  the  same  deed  as  "  lying  easterly 
from  said  dwelling-house,  and  northerly  from  the  driftway  leading 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  183 

from  said  Great  Ledge  to  the  lime-kilns,"  the  court  decided  that 
the  limits  thus  implied  were  to  be  observed,  irrespective  of  the 
continuity  and  extent  of  the  stratum  of  lime  {Dexter^,  etc.,  Com- 
pany V.  Dexter.^  6  Rhode  Island  B.,  353). 

A  deed  of  land  in  California  conveyed  "  all  that  portion  of  the 
Union  Ranch  lying  south  of  two  oak  trees  marked  E.  X.  C." 
The  Supreme  Court  of  the  State  held  that  these  trees  marked  a 
line  of  boundary,  and  that  only  that  portion  of  the  ranch  lying 
south  of  the  line  extending  between  the  trees  was  conveyed  by 
the  deed  {Chapman  v.  Excelsior.,  etc.^  Company.,  IT  Cal.  R..,  231). 

A  description  of  land  in  a  deed  in  Wisconsin  ran :  "  As  a  part 
of  the  east  half  of  the  south-west  quarter  of  section  5,  township 
3,  rauire  8,  beiriunino;  on  the  south  line  of  said  section  5,  on  the 
east  side  of  the  bottom  land  of  the  creek,  far  enough  up  the  bank 
to  raise  a  nine-foot. head  to  a  mill  standing  by  the  bridge  on  sec- 
tion 8 ;  thence  up  the  bottom  land  100  rods,  to  include  all  the 
bottom  land  on  both  sides  of  the  creek  within  the  above-men- 
tioned bounds,  etc."  The  Supreme  Court  of  the  State  held  that 
the  intention  was  to  convey  all  the  low  lands  on  either  side  of  the 
creek,  for  the  distance  of  100  rods  up  the  same  from  the  place  of 
beginning,  which  would  be  flowed  by  such  head  of  water ;  but 
that  the  "  nine-foot  head  clause"  did  not  grant  to  the  vendees  any 
right  to  flow  the  lands  of  the  vendor  above  the  100  rods  specified 
in  the  deed  {Coats  v.  Taft,  12  Wis.  R.,  388).  And  in  another 
case  before  the  same  court,  it  appeared  that  the  original  proprie- 
tors of  the  present  city  of  Milwaukee  sold  lands,  in  accordance 
with  a  recorded  town  plat,  and  whicli  extended  from  a  street  to 
what  was  then  a  bayou  or  brancli  of  the  Milwaukee  river,  running 
parallel  with  it  and  partially  navigable.  Running  by  the  side  of 
this  bayou,  and  in  part  extending  over  it,  was  a  street  called  River 
street,  and  beyond  that,  other  lots  extending  from  the  west  line 
of  this  street  to  the  main  river.  Subsequently  this  bayou,  having 
become  a  nuisance,  was  filled  up  by  order  of  the  cit}'-  authorities. 
In  ail  action  of  ejectment  for  this  land  so  filled  up,  the  court  held 
that  the  proprietors  intended  to  convey  all  their  interest  in  the 
l)ayou  and  in  the  street  in  a  manner  the  most  beneficial  to  the 
;il)iittors.  And  the  court  further  held  that,  in  view  of  the 
existence  of  the  two  highways  running  side  by  side,  the  reasona- 
ble construction  of  the  grants  was  to  make  the  line  of  the  street 
adjoining  the  bayou  the  dividing  line,  up  to  which  line  the  fee 


]  8  4  LAW   OF  so  VXD  A  RIES. 

passed  to  the  respective  abutters  on  the  one  and  the  other  side  of 
it  {JIariner  v.  SchuUe,  13  Wis.  7?.,  692). 

The  Supreme  Court  of  California  decided  that  an  agreement 
for  the  sale  or  conveyance  of  a  "  bridge,  toll-house,  stable  and 
outhouses,  with  all  the  privileges  and  appurtenances  appertaining 
and  in  anywise  belonging  to  said  bridge,"  passed  the  land  upon 
which  the  bridge  stood,  and  all  that  was  necessary  to  its  beneficial 
use  and  enjoyment  {Sjxirks  v.  Hess,  15  Oal.  7?,,  186). 

An  interesting  case  was  disposed  of  by  the  Supreme  Court  of 
the  United  States,  a  few  years  since,  in  which  that  learned  court 
gave  a  construction  to  the  language  of  a  particular  conveyance  of 
land.  The  calls  in  the  deed  before  the  court  were  to  begin  at  a 
point  described,  thence  south,  with  the  foot  of  "VV.'s  ridge,  894:. 
poles  to  a  stake  at  letter  H.  on  H.  and  company's  survey ;  thence 
west,  crossing  W.'s  ridge,  S94  poles  to  a  stake  ;  thence  north  894: 
poles  to  a  stake;  then  a  direct  line  to  the  beginning.  It  was 
admitted  that  the  lirst  line  was  the  only  one  in  fact  run,  and  that 
the  corners  therein  described  existed.  The  court  held  that  the 
monuments  must  control  the  measurement  of  the  first  line, 
although  it  did  not  give  the  whole  distance  called  for ;  that  the 
second  line  must  be  run  at  riglit  angles  witli  the  first,  leveling  the 
chain  in  going  over  the  mountain  ridge  so  as  to  give  horizontal 
instead  of  surface  measurement ;  that  the  third  line  should,  meas- 
uring in  the  same  way,  be  run  parallel  with  the  first  for  the  dis- 
tance specified,  and  from  the  end  thereof  the  fourth  line  should  be 
run  to  the  point  of  beginning  {MoEioen  v.  Bulkley,  21:  Hoioard's 
i?.,  242). 

In  the  State  of  Maine,  land  was  conveyed  bounding  "  thence 
to  the  mill  brook ;  thence  by  the  bank  of  said  brook  to,"  etc.  The 
tide  in  the  brook  ebbed  and  flowed,  and  the  bank  continued  to 
rise  more  or  less  precipitously  above  the  high-water  mark.  The 
Supreme  Court  of  the  State  held  that  the  title  of  the  grantee 
extended  only  to  the  line  of  ordinary  high-water  mark  {Stone  v. 
Augusta.,  46  Maine  7?.,  127).  And  the  same  court  held  that, 
where  the  boundary  lines  as  given  in  a  deed  will  satisfy  either  of 
two  conflicting  hypotheses  as  to  what  was  meant  to  be  conveyed, 
and  the  lot  is  further  described  as  the  "  McKay  farm,  so  called," 
the  finding  of  the  jury  as  to  the  location  of  the  "McKay  farm  " 
will  render  the  description  certain  and  determine  what  land 
passes  {Madden  v.  Tucker,  46  Maine  R.,  367). 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  185 

111  the  State  of  New  Hampshire,  a  deed  of  land  upon  a  stream 
described  it  by  the  number  of  the  lot,  and  added,  "  being  the  same 
farm  on  which  the  said  K.  now  lives."     An  island  in  the  stream, 
opposite  to  and  nearest  the  farm,  was  not  occupied  by  K.     The 
Supreme  Court  of  the  State   decided  that  the  words  wei-e  nut 
restrictive,  and  held  that  the  island  passed  by  the  deed  to  the 
grantee.     And  the  court  reiterated  the  doctrine,  that  a  conveyance 
of  land   bounded  on  a  river  not  navigable  conveys  the  land  to  the 
middle  line  of  the  river,  inclnding  any  island  situated  on  that  side 
of  such  middle  {Kimhill  v.  Sohoff,  40  N.  H.  /?.,  190).     The  same 
court  had  before  it  another  interesting  case,  in  which  it  appeared 
that  a  committee  to  make  partition  of  land,  known  as  the  "Thomas 
Clough   purchase,"  between  heirs,    set  oif  to  No.  7  as   follows  : 
Beginning  at  the  south-east  corner,  and  running  north  "to  the 
south-east  corner  of  the  fourth  division  lot.  No.  70 ;  thence  west- 
erly, on  the  divisional  line  between  said  purchase  and  said  lot,  so 
far  as  to  make  seventy-six  rods  directly  west  from  said  corner,  to 
a  stake  and  stones ; "  thence  south,  etc. ;  and  to  No.  8  as  follows  : 
Beginning  at  the  south-west  corner  of  No.  7,  thence  north,  etc., 
to  said  stake  and  stones,  as  "  the  north-west  corner  of  share  No. 
7 ;  thence  westerly,  on  the  line  of  said  purchase,  to  the  100  acre 
lot  No.  3;"  thence  southerly,  etc.,  and  made  report  accordingly. 
The  court  held  that  the  phrase,  "  so  far  as  to  make  seventy-six  rods 
directly  west  from  said  corner,"  had  reference  rather  to  the  width 
of  lot  7,  at  the  north  end,  than  to  the  location  of  the  stake  and 
stones,  and  that  said  stake  must  be  in  said  divisional  line,  what- 
ever its  direction  from  said  corner  of  lot  70.     The  court  also  held 
that  evidence  to  prove  that  the  committee  ran  out  and  established 
a  line  as  the  north  line  of  said  Clough  purchase,  and  fixed  boun.ds 
tliere,  which  bounds  and  line  were  some  distance  south  of  the  true 
courses  and  line  between  said  purchase  and  said  lot  70,  and  that 
said  committee  made  their  partition  upon  and  according  to  that 
line  and  those  bounds,  and  intended  to  bind  the  heirs  by  that  line 
instead  of  the  divisional  line  between  said  lots,  was   inadmissible, 
as  tending  directly  to  contradict  the  terms  of  the  report  {Sanlor7i 
V.  Clough,  40  A".  //.  7?.,  316).     And  the  same  court  disposed  of 
another  case,  in  which  it  appeared  that  the  deed  commenced  its 
description  "  at  a  stake  and  stones  at  the  south-west  corner"  of  the 
premises  intended  to  be  conveyed,  "  it  being  the  north-east  corner 
of  land   that  D.  W.  deeded   to   J.  W.,  May   20th,  1815."     The 
24 


J  8  6  LAW   OF  BO  VXD  A  RIES. 

3onrt  liel  J  that  this  language  could  only  be  construed  as  intendhig 
to  describe  and  to  convey  land,  the  south-west  corner  of  which 
was  identical  with  the  north-east  corner  of  the  tract  referred  to 
therein.  And  the  court  declared  that,  where  a  deed  described  the 
line  of  the  premises  intended  to  be  conveyed  as  running  "  by  the 
land  the  said  D.  deeded  to  the  said  J.  W.,"  the  word  "by"  was 
not  to  be  construed  as  meaning  "  over,"  or  "  across,"  but  "  along 
the  line  of"  the  tract  of  land  referred  to  therein  {^Bailey  v.  White, 
41  K.  H.  R.,  337). 

The  Supreme  Judicial  Court  of  Massachusetts  disposed  of  a 
case  in  which  it  appeared  that  a  grant  of  land,  bounded  southerly 
on  a  passageway  lying  between  the  land  conveyed  and  a  house 
owned  by  the  grantor,  described  by  measurements  which  excluded 
the  passageway,  and  made  by  a  conveyance  which  contained  a 
provision  that  the  grantee  and  his  heirs  and  assigns  should  have 
the  use  of  the  passageway  situated  between  the  land  conveyed 
and  the  house  referi-ed  to ;  and  that  the  grantor,  his  heirs,  assigns 
and  tenants  of  his  other  estates  should  also  have  equal  use  and 
improvement  thereof,  and  in  which  reference  was  made  to  a  plan 
upon  wliich  the  lot  was  drawn  as  distinct  from  the  passageway, 
and  with  courses  and  distances  corresponding  with  those  men- 
tioned in  the  deed.  The  court  held  that  the  grant  passed  a  title 
only  to  the  side  line  of  the  passageway  ;  and  the  court  laid  down 
the  doctrine  that,  wliere  land  is  conveyed  bounding  upon  a  way, 
the  question  whether  the  grant  extends  to  the  side  or  center  line 
thereof  depends  in  such  case  upon  the  intent  of  the  parties,  as 
expressed  in  the  descriptive  parts  of  the  deed  and  explained  and 
illustrated  by  all  the  other  parts  thereof,  and  by  reference  to  the 
localities  and  subject-matter  to  which  it  applies  {Codman  v.  Evans, 
1  Allen's  B.,  443). 

In  the  State  of  iSTorth  Carolina,  where  a  deed  of  land  called  for  a 
stone,  and,  in  the  designated  course,  pointers,  corresponding  in  age 
with  the  deed,  were  found  around  a  spot  (no  stone  being  there), 
and  a  marked  line  of  trees  was  also  found,  corresponding  in  age  with 
the  deed  and  corresponding  with  the  next  course  called  for,  and  lead- 
ing from  the  spot  so  designated  by  the  pointers,  the  Supreme  Court 
of  the  State  held  that  the  deed  should  be  construed  as  if  it  read, 
"  a  stone  marked  as  a  corner  by  pointers  ;"  and  that  such  point  was 
to  be  gone  to,  irrespective  of  distance.  And  the  court  declared  that 
where  the  first  line,  running  from  an  admitted  beginning  corner, 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  187 

is  established,  and  there  is  a  line  of  marked  trees,  corresponding  in 
age  with  the  deed  and  with  the  course  called  for,  running  to  the 
third  corner,  which  is  established,  as  in  the  case  before  the  court, 
the  second  corner  may  be  fixed  by  running  the  second  line ;  and 
the  point  of  intersection  of  the  latter  line  with  the  former  will  be 
adopted,  irrespective  of  course  and  distance  {Safret  v.  Ilartman, 
7  Jones'  Zaiv  R.,  199).  And  the  same  court  decided  that  a  call, 
from  the  mouth  of  a  swamp  down  a  swash  to  the  mouth  of  another 
swamp,  should  be  held  to  mean  a  straight  line  from  one  point 
to  the  other  through  the  swash  {Burnett  v.  Thom2)son,  7  Jonei 
Law  li.,  407).  And  the  same  court  also  held  that,  in  ascertaining 
the  boundaries  of  a  tract  of  land,  one  kind  of  natural  objects,  called 
for  in  a  deed,  is  not,  as  a  matter  of  law,  entitled  to  more  respect 
or  of  more  importance  than  another  {Patton  v.  Alexander,  7 
Jones'  Law  i?.,  003). 

In  a  case  befoi-e  the  Circuit  Court  of  the  United  States  for  the 
district  of  Massachusetts,  at  an  early  day,  it  appeared  that  A.  con- 
veyed to  B.,  by  deed,  a  certain  piece  of  land  by  specific  bounda- 
ries, and  then  added:  "It  being  the  same  land  given  by  my 
mother  to  him,  the  said  B.,  by  her  last  will  and  testament ;  said 
land  containing  about  five  acres."  The  devise  in  the  will  was  of 
"  a  piece  of  land  of  about  four  or  five  acres,  lying  a  little  uorth- 
westwardly  from  the  aforesaid  lots,  and  reaching  back  to  a  ditch." 
The  court  held  that  the  latter  clause  did  not  control  the  specific 
boundaries  in  the  deed,  even  supposing  the  will  would  admit  of 
narrower  limits,  or  was  of  doubtful  construction  Howell  v.  Saide, 
5  Mason's  E.,  410). 

An  early  case  came  before  the  courts  of  Kentucky,  wherein  it 
appeared  that  three  of  the  corners  of  a  survey  of  four  lines  were 
found ;  at  the  fourth  there  never  was  a  corner  marked,  and  the 
patent  called  for  no  corner,  but  barely,  in  approaching  the  corner, 
called  for  260  poles  on  the  line  of  another  survey.  To  run  the 
two  lines  from  the  corners  found  to  their  intersection  by  course, 
and  there  to  fix  the  corner,  the  line  of  260  poles,  named  in  the 
patent,  would  be  extended  tar  longer  than  that  number  of  poles. 
The  Court  of  Appeals  of  the  State  held  that  the  line  must  be  ter- 
minated at  that  distance ;  and  that  the  course  of  the  next  line 
must  yield  to  the  distance  called  for  on  the  line  of  the  adjoining 
survey ;  and  that  from  the  termination  of  that  distance  a  line 


188  LAW  OF  BOlu\DARIES. 

must  run  direct  sncli  a  course  as  would  strike  the  next  lower 
corner  {Calvert  v.  Fitzgerald^  6  LittelVs  li.,  391). 

In  tiie  State  of  ]^ortli  Carolina,  where  a  call  in  a  grant  was 
"  running  north  45  degrees,  M'est  220  poles,  to  a  black-oak  near 
his  (tlie  grantee's)  own  line,"  and  it  appeared  that  the  black-oak 
could  not  be  found,  nor  the  place  where  it  stood  identified,  the 
Supreme  Court  of  the  State  held  that  the  word  near  would  not 
carry  the  line  thirty  jjoles  farther  to  reach  another  tract  of  the 
grantee's ;  but  that  it  must  be  stopped  at  the  end  of  the  distance 
mentioned. in  the  grant  {Ilarvy  v.  Graham^  1  Dev.  &  Batt. 
R.,  7G). 

In  the  State  of  Maryland,  where  a  grant  of  a  tract  of  land 
described  it  as  lying  on  the  east  side  of  Chesapeake  bay,  and  on 
the  south  side  of  a  river  in  said  bay  called  St.  Michael's  river, 
next  adjoining  the  land  of  H.  M.,  beginning  at  the  said  H.  M.'s 
northernmost  bounded  oak,  running  north-cast  and  by  north  up 
the  river,  and  for  breadth  175  perches,  to  a  marked  pine  by  a 
marsh,  bounding  on  the  east  b}^  a  line  drawn  south,  and  by  east 
from  the  said  pine  for  length  320  perches ;  on  the  south  by  a  line 
drawn  south-west,  and  by  south  for  breadth  from  the  end  of  the 
south  and  b}'^  east  line  until  it  intersect  a  parallel  drawn  from  the 
land  of  II,  M. ;  on  the  west  with  said  land  and  parallel,  on  the 
north,  with  said  river,  containing,  etc.,  the  Court  of  Appeals 
decided  that  the  tract  must  be  located  from  its  beginning  to  the 
place  where  the  second  bounder  stood ;  and  from  such  place, 
according  to  the  course  and  distance  expressed  in  the  grant,  run- 
ning 320  perches  to  the  end  of  the  second  line,  according  to  such 
course  and  distance;  and  from  thence,  according  to  the  course 
and  distance  expressed  in  the  grant  for  the  third  line,  to  the  place 
where  the  third  line  should  intersect  with  a  parallel  drawn  from 
H.  M.'s  land ;  and  from  thence,  according  to  the  grant,  to  the 
beginning  (the  jury  having  found  from  the  evidence  where  the 
second  bounder  stood,  and  where  the  third  line  intersected  with 
the  parallel),  although  such  location  ran  the  track  across  the  land 
of  H.  M.  {Gihson  v.  Smith,  1  liar.  <£;  Johns.  B.,  253).  And 
another  case  was  disposed  of  by  the  same  distinguished  coui't, 
wherein  it  appeared  that  a  grant  of  land  contained  the  following 
descriptions:  beginning  at  a  bounded  white-oak,  standing  about 
twenty  perches  on  the  east  side  of  Antietum,  running  north,  etc. 
(twelve  courses) ;  then  south  eighty -four  degrees  west,  3'13  perches, 


COXSTRUCTION  OF  PARTICULAE    GRANTS.  189 

to  the  end  of  seventy-three  perches  on  the  fourth  Ihie  of  Good 
Luck ;  then  with  said  hind  reversed  south  twenty-eight  degrees, 
west  seventy-three  perches ;  south  eighty-two  degrees,  west  forty- 
six  perches;  north  fifty-eight  degrees,  west  seventy-five  perches; 
thence  south  seventy-three  degrees,  west  twenty  perches.  The 
court  held  that  the  true  location  of  this  grant  was  to  run  the 
course  south,  twenty-eight  degrees  west,  seventy-three  perches, 
reversed  with  Good  Luck;  then  course  and  distance  according  to 
the  expressions  in  the  grant  {Kirhpatrick  v.  Kyger,  1  liar.  i& 
Johns.  B.,  298). 

An  interesting  case  was  decided  by  the  Supreme  Court  of  Ohio, 
at  an  early  day,  involving  an  important  principle  in  the  construc- 
tion of  certain  conveyances  of  real  estate.  The  deed  described 
the  land  intended  to  be  conveyed  as  '*  seventy  acres,  being  and 
lying  in  the  south-west  corner"  of  a  section.  The  court  held  the 
description  to  be  a  good  one,  and  that  the  land  conveyed  should 
be  laid  off  in  a  square  ( Walsh  v.  Ringer,   2  Hammond's  E., 

327). 

But  in  a  case  decided  by  the  Court  of  Appeals  of  the  common- 
wealth of  Kentucky,  it  appeared  that  the  calls  in  the  deed  were  to 
run  from  a  corner  on  a  river,  "  down  the  river  these  several 
courses"  (giving  the  courses,  but  no  corners),  "to  the  beginning; 
but,  when  reduced  to  a  straight  line,  is  three  thousand  and  fifty 
poles."  The  beginning  was  also  on  the  river.  The  court  held  that 
the  intention  was  to  make  the  river  the  boundary  between  the 
parties  {Uockrell  v.  McQuinn,  4  Monroe's  R.,  243). 

In  the  act  incorporating  the  town  of  Hamilton,  in  the  State  of 
Massachusetts,  the  boundary  line  was  described  as  "  running  by  a 
river  to  a  wall,  etc.;  then  by  said  wall,  etc."  It  appeared  that 
the  wall  was  nearly  at  right  angles  with  the  river ;  and  from  the 
end  of  it  was  a  wooden  fence  about  two  rods,  and  beyond  that  the 
bank  was  so  steep  that  a  fence  was  unnecessary.  The  Supreme 
Judicial  Court  held  that  the  boundary  line  did  not  cross  the  river 
diagonally  to  the  end  of  the  wall,  but  followed  the  thread  of  the 
river  (not  navigal)le)  until  it  reached  the  point  where  the  wall,  if 
continued,  would  intersect  the  thread  of  the  river;  and,  thence 
making  an  angle,  it  took  the  line  of  the  wall  {Ex  j^arte  Ipswich, 
13  Pick.  R.,  431). 

An  early  case  was  disposed  of  by  the  Supreme  Court  of  New 
Hampshire,  in  which  it  appeared  that  a  person,  being  seised  of 


190  LAW   OF  BOUNDARIES. 

land  lying  partly  in  lot  No.  10  and  partly  in  lot  No.  9,  granted  a 
tract  of  land  which  lie  described  in  the  deed  as  lot  No.  10,  but  was 
bounded  on  all  sides  by  lands  of  other  persons.  The  court  held 
that  the  whole  of  the  land  of  the  grantor,  lying  in  both  lots,  passed 
by  the  conveyance,  although  in  the  descriptions  of  the  premises 
there  were  mistakes  as  to  the  owners  of  adjoining  lots  {Tenny  v. 
Beard,  5  N.  E.  R.,  58). 

An  early  case  before  the  Supreme  Court  of  Connecticut,  involving 
important  principles  of  construction  of  conveyances  of  land,  was 
this :  The  owner  of  two  adjoining  lots,  the  northern  one  called 
Gross  lot,  and  the  southern  called  Belden  lot,  conveyed  the 
former.  The  deed  contained  a  threefold  description  of  the  pre- 
mises, viz.,  as  bounded  south  on  the  Belden  lot,  as  being  the  estate 
which  the  grantor  then  possessed,  and  as  being  the  estate  which 
the  grantor  purchased  of  one  Gross.  Previous  to  this  convey- 
ance, and  while  the  grantor  owned  both  lots,  and  occupied  the 
Gross  lot,  he  erected  a  fence  on  the  front  line  of  the  lot,  and 
placed  a  post  at  the  south  end  of  such  fence.  There  was  no  evi- 
dence that  this  post  was  intended  as  a  bound,  and  no  evidence  as 
to  the  extent  of  the  grantor's  possession,  except  such  fence  and 
post ;  and  there  seemed  no  object  in  keeping  the  lines  of  the  lots 
distinct.  The  court  held  that  the  post  referred  to  could  not  con- 
trol the  line  of  the  Gross  lot ;  but  that,  if  it  could  be  ascertained, 
it  must  govern,  as  that  description  would  accord  with  the  others, 
and  thus  each  might  be  satisfied;  but  if  the  line  of  the  Gross  lot 
could  not  be  ascertained,  then  resort  might  be  had  to  the  actual 
possession  of  the  grantor  when  he  executed  the  deed.  And  the 
court  laid  down  the  rule,  as  applicable  to  the  case,  that,  wliere 
there  are  several  descriptions  of  the  premises  in  a  deed,  such  con- 
struction will  be  given  to  it  as  will,  if  possible,  satisfy  each  {Laio 
v.  Hempstead,  10  Conn.  It.,  23). 

An  early  case  was  decided  by  the  old  Supreme  Ocvirt  of  the 
State  of  New  York,  involving  tlie  interpretation  of  certain  lan- 
guage in  the  description  of  the  land  in  a  deed,  which  was  dif- 
ferent from  most  cases  of  the  kind  before  the  courts.  The  deed 
conveyed  "  150  acres  of  land,  being  and  lying  in  township  No.  1, 
west  of  Genesee  river  (south-east  corner  of  said  town,  beginning 
two  miles  north  of  Canawagus,  and  bounding  on  the  said  river), 
to  be  in  common  and  undivided."  The  court  held  that  the  words 
"beginning"  and  "  bounding"  referred  to  the  150  acres,  and  not 


COXSTRUCTIOX  OF  PARTICULAR    GRANTS.  19] 

to  the  town  or  corner  of  the  town  {Jackson  v.    Van  Antwerp,  ? 
C<no.  B.,  273). 

A  case  was  several  years  ago  decided  by  the  Ch-cuit  Court  of 
the  United  States  for  the  district  of  Massachusetts,  wherein  it 
appeared  that  in  a  grant  of  land  from  the  commonwealth  of  Mas- 
sachusetts to  the  towns  of  Taunton  and  Raynhaven,  the  land  was 
described  as  "  beginning  on  the  north  line  of  the  million  acres,  at 
a  yellow  birch  tree,  six  miles  east  from  the  south-east  corner,"  etc. 
(the  said  birch  tree  being  marked  as  a  monument  in  the  original 
survey  of  the  land),  whereas  the  said  birch  tree  did  not,  in  fact, 
stand  upon  the  said  north  line,  as  happened,  but  was  so  situated 
"that  a  gore  of  land  was  left  between  it  and  the  said  north  line. 
The  court  held  that  the  said  birch  tree,  and  not  the  said  north 
line,  was  to  be  taken  as  the  boundary  of  the  land  granted  {Cleave- 
land  V.  Smith,  2  Story's  i?.,  278). 


CHAPTER  XYI. 

FURTHER  CASES  PASSED   UPON   BY    THE    COURTS,  GIVING    CONSTRUCTION 

TO  PARTICULAR    CONVEYANCES    IN    RESPECT    TO    BOUNDARY CASES 

IN  THE  AMERICAN  COURTS  MISCELLANEOUSLY  STATED. 

The  cases  which  have  been  considered  by  the  courts,  involving 
the  construction  of  conveyances  in  respect  to  boundary,  are  more 
nunierous  than  was  at  first  supposed,  and  it  seems  important  to 
devote  still  further  space  to  the  examination  of  such  cases.  An 
interesting  case  which  came  before  the  Supreme  Judicial  Court  of 
Massachusetts,  of  the  character  indicated,  was  this:  A  straight 
turnpike  road,  which  twice  crossed  a  circuitous  county  road,  was 
laid  out  four  rods  wide,  through  the  land  of  one  B.,  leaving  a  strip 
of  his  land  between  the  turnpike  and  the  county  road.  B.  after- 
ward conveyed  this  strip  to  one  Parkei',  and  house  and  lots  on 
the  other  side  of  the  turnpike  to  C.  and  others,  bounding  each  of 
them,  on  one  side,  "  by  the  turnpike  road."  Parker  erected  a 
building  on  the  strip  thus  conveyed  to  him,  and,  after  he  had  occu- 
pied it  over  thirty  years,  the  turnpike  road  was  discontinued. 
Thereupon  a  town  way  was  laid  out,  two  rods  wide,  over  a  part  ot 
the  land  formerly  witliin   the  limits  of  the  turnpike  road,  and 


192  LAW  OF  BOUyDARIES. 

within  seven  feet  of  the  line  thereof  next  to  Parker's  strip,  and 
Parker  made  a  chiiin  on  the  town  for  damages  alleged  to  be 
thereby  sustained  by  him.  The  court  held  that  B.'s  deed  to  Par- 
ker did  not  convey  any  part  of  the  land  witliin  the  limits  of  the 
turnpike  road,  and  that  Parker  was  not  entitled  to  damages  {Par 
Tier  V.  Inhaljltants  of  Frainrngham,  8  Met.  R.,  260).  And  tlie 
same  distinguished  court  disposed  of  another  important  case, 
involving  the  construction  of  deeds  of  land,  at  a  term  or  two 
earlier,  wherein  it  appeared  that  A.  and  B.,  tenants  in  common  of 
land,  made  partition  by  deed.  A.  quitclaimed  to  B.,  by  metes 
and  bounds,  "  forty-seven  and  a  half  acres  and  twenty  rods, 
excepting  one-half  of  the  road;  also,  all  of  the  upper  part  of  the 
house  and  half  of  the  cellar,  except  the  east  great  room;  also,  all 
the  north  part  of  the  great  barn  to  the  middle  of  the  floor,"  etu. 
B.  quitclaimed  to  A.,  by  metes  and  bounds,  the  same  number  of 
acres  and  rods,  "  except  half  the  road ;  also,  one-half  of  the  house, 
containing  all  of  the  lower  part,  except  one-half  of  the  cellar  ; 
also,  the  said  A,  is  to  have  the  east  great  room,  and  the  east  part 
of  the  great  barn,  to  the  middle  of  the  barn  floor,  the  line  to  run 
east  and  west  through  the  barn  floor."  The  court  held  that  by 
these  deeds  the  buildings  were  divided  so  as  to  be  held  in  severalty, 
and  that  the  land  under  the  north  part  of  the  barn  passed  to  B. 
{Inhabitants  of  Cheshire  v.  Inhah Hants  of  Shuteshuri/,  7  Met.  7?.,  • 
566).  And  in  a  later  case,  before  the  same  court,  it  appeared  that 
a  grantor  made  a  deed  of  bargain  and  sale  of  land,  describing  it 
by  metes  and  bounds,  and  as  bounded  on  one  side  by  a  sti-eet,  and 
also  as  being  "the  same  that  was  set  off  to  AV"."  The  land  setoff 
to  W.  did  not  extend  to  the  street,  and  the  grantor  was  not  seised 
of  any  land  besides  that  which  had  been  so  set  off.  The  court 
held  tiiat  tlie  land  which  the  deed  purported  to  convey  was  truly 
described  by  the  metes  and  bounds  referred  to,  and  that  this 
description  was  not  controlled  by  the  subsequent  reference  to  the 
land  set  off  to  W.  {Bana  v.  Middlesex  Bank,  10  Met.  R.,  250). 

The  following  case  was  disposed  of  by  the  Supreme  Court  of 
Maine:  A.  granted  to  B.  "a  certain  lot  of  land  situated  on  my 
home  farm  in  W.,  on  the  west  side  of  the  road,"  containing  twenty 
acres,  "  the  said  lot  to  contain  one  acre,  in  such  shape  as  the  said 
[B.]  may  choose,"  and  "  said  one  acre  is  supposed  to  contain  a 
ledge  of  limestone  or  marble."  At  the  time  of  the  conveyance, 
there  M-as  upon  the  twenty  acres  a  ledge  of  limestone  or  mai-ble, 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  193 

and  at  a  distance  tlierefrom  a  dwelling-house,  barn  and  other 
buildings.  The  court  held  that  B.  had  no  riglit  to  so  locate  his 
acre  as  to  include  the  ledge  of  limestone  and  marble,  and  from 
thence  to  run  a  narrow  strip  of  land  to  the  buildings,  and  include 
within  his  one-acre  lot  the  land  on  which  the  buildings  stood 
{Grove  v.  Drummond,  25  21alne  li.,  185). 

A  case  came  before  the  Supreme  Court  of  North  Carolina 
involving  the  interpretation  of  a  deed  of  land,  in  which  it 
appeared  that  a  grant  called  for  a  line  from  a  certain  point, 
"  thence  N.  87  W,  179  poles,  to  a  hickory,  thence  the  courses  of 
the  swamp  to  the  beginning."  The  distance,  by  measurement, 
fell  short  of  the  swamp  nine  chains  and  fifty  links,  and  no  hickory 
in  the  course  could  be  found,  and  there  was  no  proof  of  its  having 
been  there.  Tlie  court  held  that  the  line  should  be  extended  on 
the  course  to  tlie  swamp  \McPhaul  v.  Gilchrist,  7  IredelVs  R., 
169).  And  the  same  court  held,  at  about  the  same  date,  that  a 
deed  of  "  the  storehouse  wherein  A.  has  a  store,  now  occupied  by 
him  as  a  post-office,  witli  the  outhouse  and  office  adjoining,  passed 
the  lot  of  land  on  which  the  buildings  stood,  there  being  nothing 
in  the  deed  to  give  it  a  contrary  etfect  (  Wise  v.  Wheeler,  6  Ire- 
deWs  i?.,  196). 

The  Court  of  Errors  of  the  State  of  South  Carolina  gave  a  con- 
struction to  a  sheriff's  deed  of  land,  some  years  ago,  wherein  the 
conveyance  described  the  premises  as  follows  :  "  All  that  planta- 
tion or  tract  of  land,  situate,  lying  and  being  in  the  district  of  C, 
containing  seventy  acres  by  computation,  be  the  same  more  or  less, 
butting  and  bounding  to  the  north  on  S.  river,  westwardly  on  land 
of  W.  R.  D.,  J.  S.,  and  on  the  line  dividing  O.  and  C.  districts, 
south  on  land  of  J.  S.,  and  comprehending  all  the  lands  on  C.  dis- 
trict belonging  to  the  estate  of  J.  N.,  and  known  as  the  southern 
part  of  N.'s  ferry."  The  court  held  that  the  deed  conveyed  all  the 
land  within  the  boundaries,  although  it  amounted  to  about  973' 
acres  {Gourdln  v.  Javis,  2  Richardson'' s  7?.,  -181).  And  another 
case  came  before  the  same  high  court,  at  about  the  same  time,  in 
which  it  appeared  that  land  was  described  in  a  sheriff's  deed  as 
"  1,000  acres,  more  or  less,  adjoining  lands  of  F.  W.  Pickens,  Proctor 
and  others."  The  defendant  owned  two  adjoining  parcels  of  land, 
one  called  the  "  Anderson  land,"  containing  1,007  acres,  the  other 
the '' Owens  land,"  containing  218  acres.  The  boundary,  in  the 
deed,  applied  equally,  whether  the  Owens  land  was  iucluded  or 
25 


][94  LAW   OF  BOUNDARIES. 

■excluded.  The  jury  in  the  court  below  found  that  the  deed  passed 
only  the  Anderson  land,  and  the  court  above  held  the  verdict  cor- 
rect. And  the  rule  was  laid  down,  that  if  the  land  can  be  other- 
^v^se  located,  the  quantity  mentioned  in  the  conveyance  is,  in 
general,  immaterial ;  but  when  it  is  resorted  to  as  one  of  the  evi- 
dences of  intention,  it  becomes  a  material  part  of  the  description 
{Dyson  v.  Leek,  2  Rich.  li.,  543). 

A  case  was,  some  years  since,  decided  by  the  Supreme  Court  of 
Appeals  of  the  State  of  Virginia,  in  which  it  appeared  that  A., 
owning  a  tract  of  land  supposed  to  contain  290  acres,  sold  150 
acres  to  B.,  from  the  south  end  of  the  tract,  the  parties  believing 
a  certain  line,  A  B,  to  be  the  north  boundary  of  the  lot  sold. 
Afterward  A.  conveyed  to  C.  the  north  part  of  the  same  tract, 
"  all  the  residue  thereof  lying  on  the  north  side  of  the  part  sold 
B,"  both  parties  supposing  the  line  A  B  to  be  the  north  boundary 
of  the  lot  sold  to  B.  It  afterward  appeared  that,  between  the  line 
A  B  and  the  north  line  of  the  lot  sold  to  B.,  there  was  a  tract 
of  about  130  acres.  The  court  held  that  this  tract  of  thirteen 
acres  did  not  pass  by  the  deed  to  C.  {Seamond  v.  McGinnis,  3 
■Grattaivs  R.,  319). 

The  Supreme  Court  of  Connecticut,  some  years  since,  decided 
a  case  in  which  the  deed  under  which  plaintiff  claimed  title 
■  described  the  premises  as  "  half  an  acre,  occupied  as  a  canal,  and 
bounded  north-easterly  by  a  line  parallel  with  the  north-easterly 
line  of  said  canal,  two  feet  therefrom."  The  court  held  that  the 
word  "  canal,"  as  used  in  this  deed,  imported  the  whole  excava- 
tion made  for  the  purpose  of  the  canal,  and  that  the  line  of  the 
canal  was,  therefore,  the  top  of  the  canal  bank,  and  not  the  edge 
of  the  water  in  the  canal  [Bishop  v.  Seeley,  18  Conn.  R.,  389). 

The  Supreme  Court  of  Pennsylvania  made  an  important 
decision  in  a  case,  wherein  it  appeared  that  a  testator's  farm  con- 
sisted of  412  acres,  to  which  he  had  a  perfect  title,  and  a  small 
adjoining  lot  of  twenty-five  acres,  of  which  the  warrant  and  sur- 
vey had  not  been  returned.  Both  tracts  had  been  improved  by 
liim  as  one  farm.  His  executor,  by  written  articles,  agreed  foi 
■the  sale  of  the  farm,  describing  it  as  "all  that  tract  known  as 
Annan's  (testator's)  tarm."  The  court  held  that  this  description 
-covered  both  tracts,  and  that  a  subsequent  title,  obtained  by  the 
■executor  from  the  commonwealth,  to  the  small  lot,  inured  to  the 
benefit  of  his  vendee  (  Wood  v.  Jones^  7  Bayer's  i?.,  478). 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  195 

In  a  deed  executed  by  A.  and  B.  to  a  third  party  in  the  State 
of  Maine,  the  description  of  the  premises  was  as  toUows  :  "  A  .ot 
of  hxnd,  situated  in  C,  conveyed  to  us  by  D.,  by  deed  dated  May  2oth, 
1836,  and  recorded  in  book  92,  page  51."  The  deed  recoiled  on 
the  book  and  page  named  was  from  D.  to  B.,  and  bearing  the  date 
of  May  25th,  1S35,  and  there  was  no  other  deed  on  record  from. 
D  to  B  or  to  A.,  and  B.,  and  no  deed  recorded  between  any  ot 
those  parties  dated  May  25th,  1836.  The  Supreme  Court  of  the 
State  hekl  that  the  land  described  in  the  deed  recorded  on  book 
92,  page  51,"  passed  by  the  deed  of  A.  and  B.  to  the  grantee  (  \  ose 
V.  Bradstreet,  27  Mame  R.,  156). 

The  Supreme  Court  of  Ahibama  held,  in  a  case  several  years 
aero  that  a  deed  conveying  "  the  south  part  of  the  east  half  of  the 
north-east  quarter  of  section  27,  township  16,  and  range  12,  con- 
taining 40.10  acres,"  was  not  a  conveyance  of  the  south  halt  ot 
the  ha!f  quarter  section  without  reference  to  quantity,  but  ot  the 
number  of  acres  mentioned  of  the  south  half  of  that  quarter  sec- 
tion And  it  was  declared  that  the  fact  that  the  patent  for  the 
same  tract  called  for  80.20  acres  could  not  control  such  construc- 
tion, and  that  parol  evidence  was  not  admissible  to  show  that  the 
entire  south  half  of  the  half  quarter  section  was  intended  to  be 
conveyed  {Lamar  v.  Minter,  13  Ala.  i?.,  30). 

A  very  important  and  well-considered  case  was  decided  by  tlie 
Superior  Court  of  the  city  of  New  York  in  the  year  1S4S,  which 
has  been  often  quoted  and  approved  since  by  the  Supreme  Court 
and  Court  of  Appeals  of  the  State,  and  which  settles  the  doctrine 
^ith  much  clearness  in  respect  to  boundary  npon  streets  and  pub- 
lic hio-hways.     The  case  was  this :  The  owners  of  adjoining  farms 
ao-reed  to  straighten   the  line  between  them,  commencing  at  a 
point  on  a  street  which  was  common  to  both,  and  to  lay  out  a 
road  on  each  side  of  such  line  ;  and,  soon  after  this  was  effected  m 
the  division  of  one  of  the  farms  among  its  joint  owners,  an  allot- 
ment of  the  same  was  conveyed  to  one  of  such  owners,  described 
ae  beo-inning  on  the  street  first  mentioned,  "at"  the  road  so  laid 
out,  Tud  rmining  "along  the  said  road,"  etc.,  by  courses  and  dis- 
tances.    The  court  held  that  the  grantee  took  the  land  to  Uie 
center  of  the  road,  in  front  of  the  parcel  so  conveyed,  notwith- 
standing that  on  a  map  of  the  farm  so  subdivided,  to  which  reter- 
ence  was  made  in  the  same  conveyance,  the  lot  so  conveyed  was 
laid  down  as  bounded  by  the  external  line  of  said  road.     Oakley, 


196  -^^TF   OF  BOUNDARIES. 

J.,  wlio  delivered  the  opinion  of  the  court,  among  other  things 
said  i  "  In  the  location  of  deeds  or  grants  of  land,  the  first  object 
is  to  ascertain  the  place  of  beginning.  AVhen  this  is  done  it  is  a 
controllino-  circumstance  to  determine  the  true  location  ;  and  it  will 
be  particularly  so  in  the  present  case,  as  the  first  line  from  the 
place  of  beginning  runs  with  a  given  course  to  a  certain  monu- 
ment, passing  the  premises  in  question,  and,  consequently,  cannot 
be  varied  by  any  subsequent  courses  or  monuments  in  the  deed. 
*  *  *  Assuming  that  the  position  taken  by  the  plaintiff's 
counsel  is  sound,  and  that  the  words  'beginning  at  the  road'  are 
equivalent  to  '  heginnijig  at  the  side  of  the  road,''  it  still  seems  to 
us  that,  by  the  well-established  rules  of  law,  these  deeds  must  be 
held  to  include  the  land  to  the  center  of  the  road.  The  doctrine 
on  the  subject  is  that  the  owner  of  land  on  each  side  of  a  road  or 
stream  of  water  not  navigable  \%,  jpriina  facie,  presumed  to  own 
to  the  center,  subject  to  the  public  right  of  way ;  and,  in  the  con- 
struction of  deeds,  the  general  rule  is  that  wliere  a  deed  or  grant 
of  land  is  hounded  on  a  highioa.y,  or  runs  along  a  highvKiy,  or 
when  the  boundary  line  runs  to  a  highway,  it  conveys  the  land  to 
the  center  of  the  road,  if  there  be  no  words  or  specific  description 
to  show  the  contrary  ;  and  such  words  or  specific  description  must 
be  of  a  very  decided  and  controlling  cliaracter.  *  ^  ^  As  to 
the  map,  we  do  not  consider  that  it  can  afiect  the  construction 
of  the  deed  so  as  to  take  it  orit  of  the  general  rules  of  law  before 
stated.  We  apprehend  that  it  is  not  usual,  wlien  a  map  is  made 
of  a  farm  or  lot  of  land  bounded  by  a  road,  to  include  any  part  of 
the  road  within  the  lines,  any  more  than  to  include  it  in  a  deed 
by  express  terms.  The  principal  object  of  a  map  is  to  show  the 
extent  of  the  beneficial  ownership  of  the  proprietor,  and  his  right 
of  exclusive  occupancy ;  and  this  is  particularly  the  case  with  a 
map  of  the  partition  of  land,  where  the  lots  are  marked  out  and 
measured  with  a  view  to  their  actual  contents  and  their  relative 
value.  The  deed  and  map  in  question,  taken  together,  in  fact 
constitute  one  description  of  the  land  conveyed;  and  they  simply 
show  a  lot  bounded  generally  on  a  road  or  highway.  In  locating 
a  map,  we  suppose  that  the  same  rule  of  law  will  apply  as  in  the 
case  of  a  deed.  Where  a  map  has  a  road  forming  one  of  the  sides, 
in  judgment  of  law  it  includes  that  half  of  the  road,  although  the 
line  actually  marked  on  the  map  would  seem  to  exclude  it.  We 
must  conclude,   therefore,  that  the   plaintiff  has   failed   in   the 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  197    • 

attempt  to  except  the  deed  out  of  the  general  rules  previously 
laid  down"  {Herring  v.  Fisher,  1  Sandf.  B.,  344,  347-349). 

A  case  before  the  Supreme  Court  of  Maine,  involving  important 
principles  in  point,  was  this :  A  deed  of  a  tract  of  land  was  exe- 
cuted and  delivered,  in  which  the  premises  were  bounded  "  partly 
on  a  stream,  as  the  said  lot  was  surveyed  by  L.  L.,  Esq.,  reference 
being  bad  to  the  plan  ;"  and  the  plan  showed  a  straight  line 
drawn  along  the  stream,  pursuing  its  general  course,  but  crossing 
the  stream  at  a  curvature  and  taking  in  a  piece  of  land  on  the 
other  side  within  the  curvature,  and  the  lines  named  in  the 
deed  did  not  entirely  surround  the  tract;  but  by  substituting  the 
straight  lines,  instead  of  the  stream,  the  tract  was  surrounded. 
Tlie  court  held  that  the  straight  line  must  be  regarded  as  the  true 
boundary,  and  that  the  land  on  the  other  side  of  the  stream, 
between  the  curvature  and  the  straight  line,  was  embraced  in  the 
deed  {Eaton  v.  Knapp,  29  Maine  R.,  120).  And  in  another  case 
before  the  same  court,  where  a  deed  conveyed  a  lot  of  land  "  con- 
taining a  certain  number  of  acres,  more  or  less,"  bounded  partly 
by  lot  number  53,  partly  by  A.'s  lot,  and  partly  by  the  shore  of 
a  river;  said  premises  being  the  lot  numbered  52  in  the  plan  of 
the  town  where  the  land  was  situate,  it  was  held  that  the  plan  was 
the  more  certain  monument,  and  must  control  the  other,  the  two 
being  inconsistent  {Lincohi  v.  Wilder,  29  Maine  i?.,  169). 

In  a  case  decided  by  the  Supreme  Court  of  North  Carolina,  it 
appeared  that  the  grant  to  be  considered  began  on  a  lake,  and 
thence  ran  south  a  certain  distance,  then  again  west  a  certain  dis- 
tance, then  north  a  certain  distance,  thence  east  a  certain  dis- 
tance, "with  the  windings  of  the  lake-water  to  the  beginning." 
The  court  held  that,  although  the  distance  mentioned  in  the  third 
line  should  fail  before  the  lake  was  reached,  yet  it  must  be  con- 
tinued in  a  direct  course  toward  the  lake  until  it  should  strike  the 
lake.  And  the  court  declared  that  a  flat,  annexed  to  a  grant,  can- 
not control  the  calls  of  the  grant,  where  it  does  not  lay  down  a 
natural  boundary  therein  called  for  {Literary  Fund  v.  Clarli,  9 
Ired.  R.,  58). 

In  the  State  of  Maine  a  case  came  before  the  Supreme  Court, 
wherein  it  appeared  that  a  farm,  bounding  at  one  end  on  a  river, 
\vas  a  little  wider  at  that  end  than  at  the  other.  One-half  of  the 
farm  was  conveyed  by  deed,  separated  from  tlie  other  half  by  a 
line  beginning  at  the  river  and  running  back,  "holding  its  width 


198  LAW  OF  BOUNDARIES. 

equally  alike  "  the  whole  length  of  the  farm.  The  court  held  that 
the  grantee  was  entitled  to  a  strip  of  equal  width  throughout,  and 
of  such  width  as  to  give  hiin  a  number  of  acres  equal  to  the  num- 
ber retained  by  the  grantor  {Patterson  v.  Trash,  30  Maine  B.^ 
28).  And  the  same  court  had  another  case  before  it,  at  about  the 
same  time,  in  which  it  appeared  that  lines  were  run  by  the 
grantees  under  two  deeds  of  adjoining  tracts  of  land,  made  at  the 
same  time,  on  which  lines,  with  the  intention  of  conforming  to 
the  location,  they  soon  after  established  monuments,  and  continued 
to  occupy  accordingly  for  more  than  twenty  years.  Tlie  court 
held  that  the  distances  named  in  the  deeds  must  yield  to  such 
location.  And  it  was  further  held  in  the  case  that  evidence  was 
admissible  to  show  that  the  location  w\as  made  in  conformity  with 
an  established  custom  and  usage,  existing  at  the  time  of  giving  a 
particular  measure,  in  locating  the  territory  in  question  {Mosher 
v.  Berrij,  30  Maine  R.,  83). 

In  a  case  before  the  Supreme  Court  of  Vermont  it  appeared  that 
land  was  conveyed  by  deed  by  this  description :  "Beginning  at 
the  intersection  of  the  road  from  Chelsea  to  Allen's  saw-mill,  and 
the  branch  on  which  the  saw-mill  stands,  on  the  northerly  side  of 
said  branch,  and  nearly  opposite  my  new  dwelling-house ;  thence 
on  the  easterly  side  of  said  road  until  the  said  road  strikes  tlie 
bank  of  said  branch ;  thence  down  said  branch  in  the  middle  of 
the  channel  to  the  first  mentioned  bounds."  The  court  held  that 
the  point  of  commencement  was  at  the  intersection  of  the  north- 
erly bank  of  the  stream  with  the  eastern  side  or  edge  of  the  road  ; 
and  that  no  land  lying  south  of  that  point,  and  no  part  of  the 
highway,  was  intended  to  be  conveyed  by  the  deed.  That  is  to 
say,  such  was  tlie  decision  of  tlie  court,  although  Redfield,  J.,  dif- 
fered with  his  brethren  in  the  construction  put  upon  the  language 
of  the  deed,  and,  therefore,  dissented  from  the  judgment  entered 
in  the  case  {Buck  v.  Squires,  22  Vt.  B.,  484:). 

Tlie  Supreme  Court  of  Illinois  decided  a  case  several  years  ago 
of  some  importance,  in  which  it  appeared  that  a  mortgage  had 
been  executed  u])on  a  parcel  of  land ;  and  the  premises  were 
described  in  the  mortgage  as  the  south-east  quarter  of  a  section, 
as  numl)ered  and  designated  in  the  survey  of  the  United  States, 
containing  "sixty-one  acres  of  land."  The  court  held  that  the 
designation  was  sufficiently  certain,  although  there  were  more 
than  sixty-one  acres;  and  it  was  decided  that  the  mortgage  covered 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  199 

tlie  entire  quarter  section,  as  laid  out  on  the  government  survey 
{Kruse  v.  Scripps,  11  lU.  7?.,  98). 

A  case  of  importance,  involving  the  question  of  construing  a 
deed  of  land  in  reference  to  a  record  paper,  was  decided  some 
years  since  by  the  Supreme  Judicial  Court  of  Massachusetts, 
which  may  properly  he  noted.  The  owner  conveyed  "one  undi- 
vided half  of  all  the  buildings  that  are  situated  on  the  homestead 
I  now  improve  and  occupy,  with  the  land  under  and  about  the 
same ;"  and,  on  the  same  day,  made  a  lease  in  writiTig,  not  sealed, 
to  the  grantor  of  "one-half  of  all  the  buildings  and  land  under  and 
adjoining  the  sa,me,  situated  in  R. ;  it  being  the  homestead  of  the 
taid  gi-antor."  The  court  held  that  the  lease  might  be  considered  in 
construing  the  deed ;  and  that  the  said  one  undivided  half  of  the  said 
entire  parcel  upon  which  the  buildings  stood,  with  the  land  imme- 
diately adjacent,  altogether  constituting  the  homestead  of  the 
grantor,  passed  to  the  grantee.  And  it  was  declared  as  a  rule 
tliat,  where  two  deeds  or  instruments  are  executed  at  the  same 
time,  between  the  same  parties  and  respecting  the  same  subject, 
the  terms  of  one  of  them  may  be  considered  in  construing  the 
othei-,  if  the  terms  of  the  latter  are  ambiguous  {Clayes  v.  Sweetse)', 
4  Gush.  E.,  403). 

A  very  interesting  case  was  decided  by  the  present  Supreme 
Court  of  the  State  of  New  York,  at  an  early  day  of  its  orgaiir 
ization,  involving  the  construction  to  be  put  upon  a  sheriff's 
deed  of  land,  in  which  the  premises  were  described  as  fol- 
lows:  "All  that  certain  piece  or  tract  of  land  situate,  lying 
and  being  in  the  town  of  Brutus  and  county  of  Cajmga,  on  lot 
number  iifty-five,  bounded  on  the  west  by  the  highway  as  leading 
from  Anna  Passage's  to  the  Erie  canal,  east  by  land  occupied  by 
Joshua  Bishop,  and  south  by  land  owned  by  G.  F.  Wilson,  con- 
taining al)out  two  acres  of  land,  be  the  same  more  or  less."  It 
ai)peared  that  the  premises  in  dispute  were  once  owned  by  P.  F. 
Wilson,  but  were  not  bounded  on  the  south  by  any  lands  that 
were  or  ever  had  been  owned  by  him.  But  directly  north  of  and 
adjoining  the  premises  in  dispute  was  another  parcel  of  land 
answering  the  description  in  the  sheritf 's  deed  in  every  respect, 
and  in  which  the  judgment  debtor  had,  at  the  time,  an  interest  in 
right  of  his  wife,  liable  to  be  sold  on  execution.  The  court  held 
that  the  deed  did  not  embrace  the  premises  in  dispute  ;  but  that  it 
did  include  the  parcel  lying  on  the  north.     And  the  doctrine  waj 


200  LAW  OF  BOUNDARIES. 

laid  down  that,  where  a  deed,  in  describing  premises  conveyed, 
bonnds  them  on  one  side  by  hviids  mentioned  as  owned  by  another 
person  (speaking  in  the  present  tense),  when  in  fact,  at  the  date  ot 
the  deed,  there  is  no  hmd  owned  by  snch  person  in  that  place,  the 
land  recently  owned  by  him  will  be  intended,  and  the  deed  shall 
receive  this  construction  ut  res  magis  valeat  quam  pereat.  And 
further,  that  if,  in  a  deed,  there  are  certain  particulars,  once  suffi- 
ciently ascertained,  which  designate  the  thing  intended  to  be 
granted,  the  addition  of  a  circumstance  false,  or  mistaken,  will  not 
frustrate  the  grant.  And  that,  if  there  is  a  certain  description  of 
the  premises  conveyed,  and  a  further  description  is  added,  it  is 
immaterial  wdiether  the  superadded  description  be  true  or  false 
{Mason  v.  White,  11  Barh.  Ji.,  173).  This  case  has  been  criti- 
cised in  subsequent  cases,  but  the  correctness  of  the  decision,  or 
of  the  docti'ine  here  stated,  does  not  seem  to  have  been  questioned 
in  any  adjudicated  case. 

A  case,  some  years  since,  was  decided  by  the  Supreme  Court  of 
Illinois,  involving  the  construction  of  the  description  contained  in 
a  tax  deed.  The  deed  purported  to  convey  part  of  a  town  lot, 
"  viz.,  twenty  feet  on  Main  street,  commencing  fort}'  feet  from 
alley,  undivided  half  lot  No.  G,  in  block  No.  7,  in  the  town  of 
Peoria."  The  court  held  that  the  deed  must  be  construed  as 
embracing  a  parcel  of  land  twenty  feet  wide,  extending  back  from 
Main  street,  the  whole  depth  of  the  lot,  whatever  it  might  be. 
And  the  court  declared  the  doctrine  that  the  construction  of  a  tax 
deed,  in  respect  to  the  description  of  the  land  conveyed,  must  be 
the  same  as  if  such  description  were  used  in  a  deed  between  pri- 
vate individuals.  And  further,  it  was  held  in  the  case,  that  the 
doctrine  of  strict  construction,  as  applied  to  the  execution  of 
naked  statutory  powers,  has  no  application  in  such  a  case  {Blake- 
ley  V.  Bestor,  13  III.  /?.,  70S). 

In  a  case  before  the  Supreme  Court  of  Maine,  it  appeared  that 
the  north  line  of  A.'s  land  was  100  rods  and  six  inches  north 
from  the  public  road.  A  levy  was  made  of  land,  described  as 
beginning  at  a  tree  eighty-five  and  a  half  rods  north  from  the  road, 
and  lying  north  of  A.'s  land  and  extending  from  said  tree  nortli 
seventy-two  and  a  half  rods;  tlience  east  fourteen  rods;  thence 
south  seventy-two  and  a  lialf  rods  to  tlie  north-east  corner  of  A.'s 
land  ;  thence  west,  along  his  north  line,  to  said  tree.  The  tree 
could  not  be  found.     The  court  very  properly  held  that  the  south 


CONSTRUCTIOX  OF  PARTICULAR    GRANTS.  201 

line   of  the   levy  was   at  A.'s  north   line    {Alden  v.  Noonen,  32 
Maine  7?.,  113). 

The  Supreme  Judicial  Court  of  Massachusetts  held,  some  yeara 
ago,  that  where  a  parcel  of  land  was  conveyed  "beginning-  at" 
and  "bounding  on  land  of  B.,"  the  point  of  beginning  and 
boundary  was  the  true  line  of  B.'s  land,  and  not  the  line  of  B.'s 
occupation  as  sliown  by  a  fence  set  up  and  maintained  by  B. 
before  and  after  the  conveyance,  with  the  consent  ^of  the  owner 
of  the  lot  conveyed,  under  the  mistaken  belief  that  such  was  the 
true  line  {CUavehmd  v.  Flagg,  4  Cash.  R.,  76).  And  the  same 
court  held,  at  a  later  term,  in  a  case  wherein  it  appeared  that  the 
boundary  line  of  land  conveyed  was  described  in  the  deed  as  run- 
ning parallel  M^ith,  and  within  seven  inches  of,  a  certain  wall,  but 
its  length  was  not  given,  that  the  line  should  be  run  as  far  as  the 
grantor  had  a  right  to  extend  it,  in  order  to  give  the  full  and 
proper  effect  to  the  grant  {Ball  v.  Broiori,  5   Cash.  R.,  289).    - 

The  Court  of  Appeals  of  the  State  of  Maryland  decided  a  case, 
some   twenty   years   ago,   in    which    several   points    relating   to 
boundary  were  settled.     The  question  arose  under  a  conveyance 
of  a  tract  of  land  wherein  the  call  was  to  begin  at  a  bounded  tree 
by  the  side  of  a  branch,  and  to  run  the  course  and  distance  to  a 
known  boundary.     It  appeared  that  the  beginning  tree  was  lost. 
The  court  held  that  the  commencement  of  the  first  line  of  the 
tract  must  be  found  by  running  the  course  and  distance  from  the 
known  boundary,  and  the  line  to  the  branch  not  elongated  or 
shortened,  the  expression  as  to  the  branch  being  declared  to  be 
merely  descriptive  of  the  general  locality  of  the  tree,  and  not  an 
imperative  call,  locating  the  spot  where  the  tree  stood.     And  it 
was  said  to  be  no  objection  to  this  rule  that  by  the  reversal  of  the 
line  the  beginning  was  sliown  to  be  in  deep,  navigable  water,  at  a 
distance  from  the  shore,  or  where  the  lost  beginning  could  not  have 
stood.     It  was  said  that  the  leading  object  in  the  gratification  of 
calls  is  certainly  in  the  location   of  the  grant,  and  it  was  declared 
to  be  a  general  rule  that,  if  there  be  a  peremptory  call  to  an  object 
of  length  by  a  course  and  distance  line,  and  the  object  can   be 
reached  by  gratifying  the  distance,  but  violating  the  course,  or  by 
conforming  to  the  course  and  disregarding  the  distance,  the  course 
must  control  the  distance.     The  following  other  points  were  made 
by  the  court  in  the  case :  The  word  "  by,"  when   descriptively 
used  in  a  grant,  as  it  was  in  the  case  at  bar,  does  not  mean  "  in 
26 


202  LAW  OF  BOUNDARIES. 

immediate  contact  with,"  but  "  near  "  to  the  object  to  which  it 
relates  ;  and  near  is  a  relative  term,  meaning,  when  nsed  in  land 
patents,  very  unequal  and  different  distances.  The  reason  assigned 
for  running:  lines  of  lands  to  the  boundaries  called  for  at  their 
terminations,  instead  of  terminating  them  according  to  their 
courses  and  distances,  is  not  exclusively  that  greater  certainty  as 
to  the  termini  of  such  lines  is  thereby  attained,  but  also  because 
thus  locating  grants  is  more  beneficial  to  grantees  ;  and  because 
it  is  a  rule  of  construction,  in  expounding  grants,  to  give  them 
that  interpretation  which  operates  most  strongly  against  grantors 
and  in  favor  of  the  grantees.  A  deed  or  patent  for  a  tract  of 
land  passes  nothing,  unless  the  land  described  therein  is  suscepti- 
ble of  location,  or,  in  other  words,  unless  the  survey  thereof  can 
be  made  to  close,  either  as  to  the  whole  tract  conveyed  or  some 
definite  part  thereof.  If  a  tract  of  land  be  granted  by  boundaries 
only,  without  courses  and  distances,  if  the  beginning  or  any  sub- 
sequent boundary  be  lost,  and  its  original  situs  cannot  be  proved, 
the  entire  tract  is  lost,  and  the  grant  thereby  becomes  inoperative. 
If  a  tract  be  granted  by  courses  and  distances  only,  without  call- 
ino-  for  any  boundary  or  object,  save  that  at  the  commencement 
of  the  first  line,  and  that  be  lost,  and  no  proof  can  be  adduced  of 
the  beginning  or  ending  of  any  of  its  lines,  the  tract  becomes  a 
nonentity ;  in  other  words,  the  grant  is  a  nullity.  If  a  grant  be 
made,  not  only  with  courses  and  distances,  but  with  calls,  it  has  a 
principle  of  self-sustentation,  not  possessed  by  grants  with  course 
and  distance  only,  or  with  calls  only.  Where  a  grant  is  by  course 
and  distance  and  calls,  if  the  beginning,  and  any  or  all  of  the 
boundaries,  save  one,  are  lost  and  incapable  of  proof,  the  vitality 
of  the  gi-ant  still  continues.  This  is  the  natural  import  of  the 
express  words  of  the  grant.  A  valid  survey  or  grant  may  be 
made  without  stating  any  natural  object  as  being  the  beginning 
of  its  first  line,  if  there  be  a  boundary  at  the  termination  thereof. 
It  is  no  objection  to  the  validity  of  a  grant  that  the  place  of  its 
beginning  is  covered  with  water,  whether  navigable  or  otherwise  ; 
or  that  any  of  its  lines  run  across  such  water.  And  in  cases  of 
grants  of  land,  describing  it  by  courses  and  distances  and  calls, 
the  courts  of  Maryland  have  determined  tliat,  in  locating  them, 
they  shall  first  be  run  by  the  calls ;  but  if  that  be  impracticable, 
they  shall  then  be  located  by  course  and  distance  (  Wilson  v. 
Inioes,6  GUI's  12.,  121). 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  203 

The  Supreme  Court  of  Pcnnsjlvania  lias  decided  that,  where 
land  was  described  in  a  conveyance  as  bounded  by  adjoining  lots 
and  by  a  street,  and  the  quantity  of  ground  within  these  bounds 
exceeded  by  twelve  feet  the  measurement  contained  in  the  con- 
veyance, the  boundaries  governed  {Pitts  v.  Gaw,  15  Penn.  i?., 
218),  And  in  another  case  before  the  same  court,  it  appeared  that 
a  survey  returned  calls  for  others  on  three  sides,  and  on  the  fourth 
for  A.,  "  or  vacant,"  and  there  was  no  evidence  given  that  the  line 
on  that  side  was  run.  The  court  held  that  it  was  not  erroneous 
for  the  court  to  charge  the  jury  that  the  return  was  equivocal,  or 
indicated  nothing  more  than  that  the  land  on  that  side  was  left 
open  or  undecided  upon  by  the  surveyor.  The  court  also  declared 
that  the  marks  on  the  ground  of  an  old  survey,  indicating  the 
lines  originally  run,  are  the  best  evidence  of  the  location  of  the 
survey,  and  that  if  any  evidence  of  such  lines  exist,  it  should  be 
referred  to  the  jury  {Gratz  v.  Hoover,  16  Penn.  R.,  232). 

The  Supreme  Court  of  North  Carolina  decided,  some  years  ago, 
that  where  a  grant  calls  for  the  line  of  an  old  survej^  the  rule  is 
that  it  must  go  to  it,  unless  a  natural  object  or  marked  tree  is 
called  for,  and,  before  the  calls  of  the  junior  grant  can  be  ascer- 
tained, those  of  the  old  must  be  located  {Diila  v.  MoGhee,  12 
Ired.  P.,  332). 


CHAPTER  XVII. 

STILL  FURTHER  CASES  PASSED  UPON  BY  THE  COURTS,  GIVING  CONSTRUC- 
TION   TO    PARTICULAR    CONVEYANCES    IN    RESPECT    TO   BOUNDARY 

CASES  MISCELLANEOUSLY  STATED. 

The  examination  of  leading  cases  passed  upon  by  the  courts, 
involving  the  construction  of  particular  conveyances  relating  to 
boundary,  may  be  still  further  continued.  The  Supreme  Judicial 
Court  of  Massachusetts,  some  years  since,  decided  a  case,  in  which 
it  appeared  that  A.  conveyed  land  to  B.,  describing  it  as  bounded 
"  north  on  the  line  of  Blandford."  The  line  of  the  town  of  Bland- 
ford  was  subsequently  established  by  an  act  of  the  legislature ; 
after  which  B.  conveyed  to  C.  by  a  similar  description.  The  court 
held  that  the  line  so  established  was  the  northern  boundary  of  the 
land  included  in  the  deed  from  B.  to  C. ;  and  that  parol  evidence 


204  i.4Tr   OF   BOUNDARIES. 

was  inadmissible  to  show  that,  prior  to  this  act  of  the  legislature, 
the  line  of  Blandford  was  understood  and  reputed  to  be  farther 
north  than  the  line  so  established,  and  was  defined  by  a  line  of 
marked  trees;  and  that  the  deed  from  B.  to  C.  was  intended  and 
understood  by  the  parties  to  convey  the  same  land  included  in 
the  deed  from  A.  to  B.  {Cook  v.  Babcoch,  7  Cush.Ii.,  526). 

A  case  decided  by  the  Supreme  Court  of  Maine,  involving  the 
construction  of  the  descriptive  language  of  a  deed  of  land,  was 
this:  The  deed  described  the  land  conveyed  as  *' lot  No.  three;" 
"  being  the  same  farm  that  A.  now  lives  on."  In  point  of  fact, 
the  farm  which  A.  then  lived  on  was  not  lot  No.  three,  but  lot  No. 
one.  The  court  held  that  the  farm,  on  which  A.  then  lived, 
passed  by  the  deed.  It  may  be  of  interest  further  to  state  that  a 
warranty  deed  of  land  from  A.  to  B,  came  also  before  the  court 
for  adjudication  in  the  case,  which  contained,  at  the  close  of  the 
covenant,  the  following  clause :  "  Provided,  that  the  said  A.  shall 
pay  or  cause  to  be  paid  to  C.  a  note  of  hand "  (describing  it), 
"  signed  by  A.  and  B."  The  court  decided  that  no  effect  could 
be  given  to  this  clause  in  the  deed,  it  being  incomplete,  unmean- 
ing and  inoperative  {Ahhott  v.  Flke,  33  Maine  li.,  204). 

The  Supreme  Court  of  Michigan  decided  a  case,  some  twenty 
years  ago,  in  which  it  appeared  that  a  deed  described  a  piece  of 
land  as  all  that  tract  or  parcel  of  land  situate  in  the  town  of 
Logan,  county  of  Lenawee,  and  Territory  of  Michigan  ;  being 
known  and  distinguished  as  the  east  half  of  the  north-west  quarter 
of  section  twenty-one,  in  township  number  twenty-six,  south  of 
range  number  three.  There  was  no  surveyed  township  number 
twenty-six  in  Logan.  The  court  held  that  the  number  of  the 
township  might  be  rejected,  as  repugnant  to  the  other  parts  of 
the  description ;  and  it  appearing,  from  the  act  organizing  the 
town,  that  there  were  two  sections  numbered  twenty-one  in  the 
town,  corresponding  with  the  description  in  the  deed,  one  in 
surveyed  township  numbered  six,  and  one  in  surveyed  township 
numbered  seven,  both  in  range  three,  east,  the  same  was  held  to 
be  a  patent  ambiguity,  although  the  court  was  bound  judicially  to 
take  notice  of  the  act  organizing  the  town,  and  that  parol  evidence 
of  surrounding  circumstances  and  collateral  facts  might  be  received 
to  show  which  of  the  two  sections  was  intended  by  the  grantor 
{Ives  V.  Kimhall,  1  Mich,  i?.,  308).  And  another  important  case 
was  decided  by  the  same  court,  at  about  the  same  time,  involving 


CONSTRUCTION  OF  PARTICULAR    GRANTS.  205 

a  question  of  boundary,  as  well  as  other  interesting  questions 
relating  to  the  construction  of  a  conveyance  of  real  estate.  Tlie 
deed  described  the  premises  conveyed  as  a  certain  piece  or  parcel 
of  land,  situate  in  out-lot  No.  10,  in  the  village  of  P.,  to  comprise 
lots  I^os.  1  and  9,  in  the  west  part  of  the  subdivision  of  tlie  afore- 
said lot  No.  10,  the  same  being  112  feet  wide  on  the  Mt.  C.  road, 
to  the  center  of  the  road  leading  to  the  woolen  factory,  and 
extending  in  length  to  the  center  of  the  Clinton  river,  with  the 
privilege  of  fifty  square  inches  of  water,  to  be  applied  five  feet 
from  the  surface  of  the  Clinton  river,  opposite  the  place  of  taking 
water  from  the  race ;  to  be  subject,  at  all  times  and  forever,  to 
the  woolen  factory,  and  one  run  of  stones  for  flouring,  after  such 
mills  shall  be  erected ;  the  dam  and  race  to  be  forever  put  in 
repair  by  said  party  of  the  first  part ;  the  said  two  lots  being  a  strip 
of  land  off"  from  the  south-westerly  side  of  said  out-lot  No.  10,  and 
being  designated  on  a  plat  of  the  subdivision  of  said  out-lot,  this 
day  recorded.  The  court  held,  1.  That  the  plat  of  the  subdivision 
of  lot  No.  10  might  be  referred  to  for  the  purpose  of  giving  a 
construction  to  the  grant.  2.  It  appearing  from  the  plat  that  lots 
1  and  9  were  separated  by  a  strip  of  land  marked  "  race  and  alle}'," 
and  that  lot  No.  1  lay  northerly  of  it,  and  between  it  and  the  Mt. 
C.  road,  and  lot  No.  9  lay  southerly  of  it,  and  between  it  and  the 
Clinton  river,  it  was  held  that  the  fee  in  the  strip  of  land  did  not 
pass  b}^  the  deed.  And  it  may  be,  also,  of  interest  to  state  that  it 
was  further  held  in  the  case  that  the  grantee  could  not  draw  the 
water  through  an  orifice  of  fifty  square  inches  into  a  flume  or 
reservoir  upon  his  own  premises,  and  then  apply  it  by  a  larger 
discharge  than  fifty  square  inches  ;  thereby  enabling  him,  a  portion 
of  every  twenty-four  hours,  to  drive  machinery  requiring  more 
than  fifty  square  inches  of  water  to  propel  it  {Paddock  v.  Pardee., 
1  Mich.  R.,  421). 

In  a  case  before  the  Supreme  Judicial  Court  of  Massachusetts 
it  appeared  that  a  deed  was  executed  and  delivered  for  a  parcel  of 
land,  in  which  the  northerly  boundary  of  the  premises  conveyed 
was  described  as  "four  feet  north  from  the  northerly  side  of  the 
building  now  standing  on  said  premises."  The  court  held  that 
this  included  the  land  on  the  northerly  side  of  the  building  to  the 
distance  of  four  feet  from  the  edge  of  the  eaves  {Millett  v.  Foiole, 
8  Cush.  R.,  150).  And  in  another  case  before  the  same  court,  at 
about  the  same  time,  in  which  a  conveyance  of  land  was  involved^ 


206  LAW  OF  BOUNDARIES. 

the  deed  described  the  boundary  line  of  the  land  conveyed  as  run- 
ning northerly  a  certain  distance  to  a  highway ;  and  from  thence 
upon  the  highway,  etc.  The  court  held  that  the  deed  passed  the 
land  to  the  center  of  the  highway,  although  the  distance  specified, 
by  actual  measurement,  carried  the  line  only  to  the  southerly  side 
of  the  highway  {Newhall  v,  Ireaon.,  8  Cush.  R.,  595), 

The  Supreme  Court  of  Missouri  decided  a  case,  several  years 
since,  upon  the  following  facts :  "  Cedar  Cabin "  was  the  name 
by  which  a  tract  of  land  was  known  to  the  parties.  On  this  tract 
stood  a  cedar  cabin  of  trifling  value.  A.  "resigned  all  his  right, 
title  and  interest  to  the  'cedar  cabin'"  (without  any  further 
description)  to  B.  for  the  sum  of  $400.  The  court  held  that  A.,  by 
this  instrument,  resigned  all  his  claim  to  the  "  Cedar  Cabin"  tract 
of  land  {Cravens  v.  Pettlt,  16  2£o.  B.,  210).  And  the  same  court 
decided  another  case,  at  about  the  same  time,  where  the  deed 
described  the  land  conveyed  as  "part  of  lot  number  three,  which 
is  more  particularly  known  as  the  lot  or  part  of  lot  on  which  the 
Hannibal  hotel  stood."  The  court  held  that  all  the  land  passed, 
by  the  deed,  on  which  the  hotel  stood,  although  it  covered  part 
of  lot  three  and  part  of  an  adjoining  lot  {Bates  v.  Bower,  IT  Mo. 
IL,  550). 

In  a  case,  some  years  since,  before  the  Supreme  Court  of  Kew 
Hampshire  it  appeared  that  A.  and  J3.  owned  a  certain  tract  of 
land  in  common,  of  which  A.  owned  one-third  and  B.  two-thirds. 
Parties,  duly  authorized,  set  off  B.'s  share  to  him  in  severalty. 
At  the  time  of  the  division,  part  of  the  land  thus  owned  in  com- 
mon was  covered  by  a  pond  of  water,  and  the  land  set  off  to  B. 
was  bounded  by  the  waters  edge  of  said  pond,  at  high-water 
mai-k,  and  included  two-thirds  of  the  common  lot,  exclusive  of  the 
land  covered  by  the  water ;  and  B.  assented  to  the  location  of  his 
share,  and  the  line  of  the  water's  edge  as  the  boundary,  and  went 
into  tlie  possession  of  his  share  according  to  the  location  and  line 
so  agreed  upon,  and  acquiesced  therein  for  the  space  of  about 
twenty- four  years.  The  court  held  that  the  agreement,  thus  exe- 
cuted and  acquiesced  in,  was  conclusive  evidence  that  B.'s  share 
was  correctly  located,  and  that  tlie  boundary  mentioned  was  an 
accurate  division  of  the  line,  and  that  B.  and  his  grantees  were 
equally  bound  and  concluded  thereby  {Barry  v.  Garland,  6  Fos- 
ter's R.,  473). 

The  Supreme  Court  of  Appeals  of  the  State  of  Virginia,  a  few 


CONSTRUCTION  OF   PARTICULAR    GRANTS.  207 

years  ago,  decided  a  case  involving  principk.s  relating  to  the 
boundary  of  lands,  in  whicli  it  ap])eared  that  owners  of  a  large 
tract  of  land  conveyed  a  part  of  it,  and  the  call  of  the  deed  was : 
beginning  on  the  line  of  a  survey  made  for  A.,  about  six  hundred 
and  ninety  poles  from  its  northerly  corner;  running  thence  with 
A.'s  line  a  given  course  and  distanco  to  two  white-oaks,  without 
naming  them  as  the  corner  of  any  otJier  survey.  The  court  held 
that,  though  there  was  an  obvious  mistake  in  some  one  or  other 
of  the  calls  in  the  survey,  yet  the  beginning  corner  must  be  made 
at  the  point  on  the  line  of  A.,  six  hundred  and  ninety  poles  from 
his  northerly  corner ;  and  that  the  word  "about  "must  be  disre- 
garded,—  no  corner  having  in  fact  been  made,  and  the  call  being 
not  for  any  object,  but  for  a  mathematical  point  only.  And  it  was 
further  decided,  as  to  a  question  of  evidence,  that  statements  of  a 
deceased  chainman,  as  to  the  corner  and  line  trees  of  a  survey, 
were  admissible  in  evidence ;  but  that  his  statements  as  to  the 
locality  of  the  land,  and  tiie  streams  whicli  the  boundary  lines, 
would  cross,  were  inadmissible  to  fix  the  locality  of  the  survey 
{Smith  v.  Chapman,  10  Gratt.  7?.,  445). 

A  case  was  decided  by  the  English  courts,  not  long  ago,  in 
which  it  appeared  that  an  award,  under  an  act  of  Parliament, 
defined  the  southern  boundaries  of  the  P.  F.  Level  colliei-y  thus : 
"Commencing  at  the  point  where  the  said  level  struck  the  coal, 
and  extending  in  an  eastward  direction  as  deep  as  the  said  level 
will  drain."  There  was  an  old  existing  excavation  (termed  by 
miners  a  level),  not  horizontal,  but  running  upward  into  the  coal, 
eastward  from  the  point  where  it  struck  the  coal  bed.  This  exca- 
vation was  described  on  the  plan  annexed  to  the  award  as  the  line 
of  boundary.  The  court  held  that  this  existing  old  level  was  the 
boundary  meant  by  the  award,  and  not  an  imaginary  mathematical 
line  drawn  horizontally  eastward  from  the  point  where  the  old 
excavation  struck  the  coal  {Braui  v.  Harris,  29  Eng.  Lav)  and 
Eq.  B.,  431). 

A  ease  came  before  the  courts  of  South  Carolina,  a  few  years 
since,  wherein  it  appeared  that  a  deed  of  conveyance  described 
the  land  as  containing  so  many  acres,  "  being  part  of  a  tract  of 
11,782  acres,  granted  to  W.  M.,  situate,"  etc.,  "bounded,"  etc.,  "as 
will  more  fully  appear  by  reference  to  the  annexed  plat."  The 
Court  of  Appeals  of  the  State  held  that  the  conveyance  embraced 
all  the  land  described  by  the  plat,  although  a  portion  of  it  was 


208  LAW  OF  BObWDARIES. 

outside  of  the  grant  to  W.  M.  {Evans  v.  Codeij,  8  Bk  i.  i?., 
315). 

Tlie  Supreme  Court  of  Ohio  decided  a  ease,  some  twenty  years 
ago,  involving  an  interesting  principle  of  construction  of  convey- 
ances of  land,  in  which  it  appeared  that  an  owner  of  a  large  tract 
of  land  supposed  to  be  of  certain  dimensions,  and  to  contain  a 
certain  number  of  acres,  made  a  plat  of  it,  and  divided  the  whole 
into  a  certain  number  of  lots,  no  survey  being  made,  and  marked 
on  the  plat  the  number  of  acres  in  each  lot,  and  sold  the  lots  by 
the  plat.  The  court  held  that  the  number  of  acres  inscribed  was 
a  mere  estimate.  And  it  was  further  held  that,  when  a  plat  is 
made  part  of  a  deed,  it  controls  courses  and  distances  given.  The 
court  also  declared  that  the  object  of  construction  is  to  ascertain 
the  intent  of  the  parties ;  and  wiien  this  intent  is  discovered  it 
governs,  unless  the  language  employed  renders  it  impossible  to 
give  it  effect  (  ]Volfe  v.  Scarhorough,  2  Ohio  R.,  N.  S.,Z^\). 

A  case  was  decided  by  the  Supreme  Court  of  the  United  States, 
a  few  years  ago,  wherein  a  grant  of  laud  was  rnvolve<3,  in  which 
the  deed  described  the  land  eojiveyed  as  "forty  arpens  front  upon 
forty  in  depth,  along  the  river  called  Des  Peres,  from  the  north 
to  the  south,  which  is  bounded  un  the  one  side  by  the  lands  of 
Louis  Robert,  and  on  the  otlier  by  the  domain  of  the  king." 
The  court  held  that  the  grant  was  so  uncertain  in  its  boundaries 
as  to  require  a  survey  to  ascertain  and  establish  them ;  and  that 
such  a  survey,  made  under  the  direction  of  the  land  commission- 
ers, was  conclusive  evidence  of  the  true  boundai-ies  {Stanford  v. 
Taylor,  18  Row.  7?.,  409). 

In  the  State  of  Maine  a  grantor  owned  an  undivided  moiety  of 
land,  in  common  with  the  defendant,  south  of  Fore  street,  and  a 
store  and  distillery  thereon  ;  also,  in  severalty,  two  stores  on  the 
south  side  of  and  upon  Fore  street.  He  executed  and  delivered  a 
deed  to  the  tenant,  describing  an  undivided  half  of  land,  and  one 
moiety  of  the  buildings  thereon,  consisting  of  a  distillei-y  and  two 
stores  on  the  southerly  side  of  Fore  street.  The  Supreme  Court 
of  the  State  held  that  this  deed  did  not  embrace  the  stores  held  in 
severalty  {^Jordan  v.  Mussey,  37  Maine  li.,  376).  And  the  same 
court  disposed  of  a  case,  involving  the  construction  of  another  con- 
veyance of  land,  at  about  the  same  time,  wherein  it  appeared  that 
a  grantor  conveyed  a  parcel  of  land,  describing  it  in  tlie  deed  as 
"  twenty -live  acres,  more  or  less,"  "  being  the  same  land  I  pur- 


COX^RUCTION  OF  PARTICULAR    GRANTS.  209 

cliased  of  R.  W."  The  court  held  that  the  deed  conveyed  all  the 
{and  comprised  in  the  deed  of  R.  W.,  though,  in  fact,  sixty-seven 
acres.  And  the  court  reiterated  the  rule  that  words,  indicating 
quantity  in  the  descriptive  part  of  a  deed,  when  conflicting  with 
words  of  more  accurate  description,  must  yield.  Otherwise,  liow- 
ever,  they  are  to  he  regarded  as  part  of  the  description,  and  are 
not  qiuiliiied  by  the  addition  of  the  words  "  more  or  less"  {Pierce 
V.  Faimce,  37  Jlaine  B.,  63). 

A  very  interesting  case,  calling  for  the  interpretation  of  a  deed 
of  land,  was  disposed  of  by  the  Supreme  Judicial  Court  of  Massa- 
chusetts, wherein  it  appeared  that  one  II.  conveyed,  by  the  follow- 
ing description,  "A  certain  piece  of  land,  wharf  and  flats,  begin- 
ning at  a  point  on  the  easterly  side  of  Sea  street,  at  the  south- 
westerly corner  of  D.'s  wharf;  and  from  said  corner  running  in  a 
direction  of  about  south,  sixty  degrees  east,  bounded  northerly  on 
said  D.'s  wharf  and  flats  to  the  channel  or  low-water  mark;  then 
beginning  again  at  said  corner  of  D.'s  wharf,  and  running  south 
eleven  degrees  west  by  said   Sea  street  one  hundred  and  thirty- 
three  feet ;  then  turning  and  running  in  a  direction  of  about  soutli 
sixty  degrees  east  (parallel  with  the  northern  boundary  line   on 
said  D.)  to  the  channel  or  low-water  mark,  and  bounded  southerly 
by  other  lands  and  flats  of  me,  the  said  H. ;  thence  running  north- 
erly by  the  channel  to  the  easterly  end  of  said  northern   bound- 
ary line."     The  course  of  south  sixty  degrees  east  from  the  south- 
westerly corner  of  D.'s  wharf  coincided  with  the  water  line  of 
said  wharf  for  a  considerable  distance;  at  the  end  of  which  the  line 
of  the  wharf  turned  and  ran  northerly  about  twenty  feet,  and  then 
turned  again  and  ran  in  a  line  nearly  parallel  with  the  first  toward 
the  channel.     The  true  line  between  the  flats  of  H.  and  the  flats 
of  D.,  commencing  at  the  south-westerly  corner  of  D.'s  wharf,  ran 
south  forty-flve  degrees  east  to  the  channel.     The  court  held  that 
the  northern  boundary  line  of  the  premises  conveyed  followed  the 
line  of  D.'s  wharf  to  the  first  jog,  and  then   struck  the  true  line- 
between  the  flats  of  D.  and  II.,  and  followed  that  line  to  the  chan- 
nel;  and  that  the  southern  line  of  the  premises  conveyed  was 
parallel  with  the  northern  line  thus  established;  although  both; 
D.  and  PI.,  at  the  date  of  this  deed,  supposed  the  true  line  between 
their  flats  to  run  from  the  south-westerly  corner  of  D.'s  wharf  in  a. 
straight  line  to  the  channel ;  and  although,  by  the  construction  givem 
by  the  court,  the  southern  line  of  the  premises  would  run  bo  tar  tO' 
27 


210  LAW   OF  BOUNDARIES. 

the  soutli  ward  that  a  small  portion  of  its  easterly  end  would  cross  flats 
not  owned  by  tlie  grantor  {Curtis  v.  Francis,  9  Cush.  E.,  4.27). 
A  case  was  disposed  of  by  the  Supreme  Court  of  Missouri, 
involving  the  construction  of  a  conveyance,  in  which  it  appeared 
that  the  description  in  the  deed  was  "a  tract  of  land  eight  arpens 
front  upon  the  depth  of  forty,  and  as  the  same  exists  according  to 
the  line  of  the  figurative  plan."  The  court  held  that  the  deed 
did  not  convey  particular  land  claimed,  no  extrinsic  proof  of 
locality  being  offered  (  Vasquez  v.  Richardson,  19  Mo.  li.,  96). 
And  the  same  court  decided  a  case,  at  a  subsequent  term,  wherein  it 
^appeared  that  a  lot  of  land  was  described  in  a  deed,  and  stated  to 
be  included  in  the  "  south-east  "  corner  of  a  larger  tract,  and  the 
grantee  took  possession  of  a  similar  tract  in  the  south-west  corner 
of  the  larger  tract,  and  the  evidence  adduced  showed  that  this  was 
intended  by  the  parties.  The  court  held  that  the  word  ''  south- 
east" might  be  rejected  from  the  description,  and  the  land  located 
according  to  tlie  rest  of  the  description  and  the  evidence  {Evans 
y.  Greene,  21  Mo.  E.,  170). 

A  lot  of  land  in  the  State  of  Maine  was  conveyed  by  the  fol- 
lowing description :"  "  Beginning  at  a  post  in  the  south-westerly 
line  of  Court  street,  thence,  etc.  (on  two  lines  of  the  lot),  thence 
between  said  lots  to  Court  street,  thence  on  Court  street  to  the 
first-mentioned  bound."  The  fence  around  the  lot  included  part 
■of  the  street.  The  identity  of  the  post  referred  to  was  uncertain. 
The  Supreme  Court  of  the  State  held  that  no  part  of  the  street 
was  conveyed  by  the  deed  (  Walker  v.  Pearson,  40  Maine  B.,  152). 
And  in  another  case  before  the  same  court,  at  about  tlie  same 
time,  it  appeared  that  the  charter  of  a  railroad  corporation 
empowered  them  to  fix  their  location,  within  a  certain  time,  by 
filing  the  same  with  the  county  commissioners.  A  track  was  sur- 
veyed, and  staked  out  across  the  plaintifi:'  's  land,  but  the  location 
was  not  filed.  The  plaintiff  executed  a  deed  to  the  corporation 
of  "  a  strip  of  land  covered  by  the  location  of  their  said  railroad, 
or  that  may  finally  be  covered  by  such  location."  Subsequently 
the  legislature  extended  the  time  for  fixing  the  location,  and 
within  such  extended  time  a  location  was  fixed  by  which  the  rail- 
road crossed  the  plaintiff's  land  at  a  different  place  from  that  sur- 
veyed and  staked  out.  The  court  held  that  the  company  had  no 
Tight,  under  the  deed,  except  in  the  strip  originally  surveyed  and 
staked  out  {Hall  v.  Pickering,  40  Maine  P.j  548). 


COXSTRUCTION  OF  PARTICULAR    GRANTS.  21  L 

An  interestiiiii:  case  involving  the  constrnction  of  a  deed  of  land 
was  decided  by  the  Supreme  Court  of  New  Hampshire,  in  1857, 
in  which  it  appeared  that,  prior  to  1838,  one  C.  occupied  as  his 
homestead  a  farm  containing  about  200  acres,  and  in  that  year 
conveyed  eighty  acres  of  it  to  one  P.,  occupying  the  remaining 
120  acres  as  his  homestead  till  181:1,  when  he  removed  from  the 
farm  and  never  returned.  In  October,  1841,  he  leased  the  120 
acres  to  one  K.,  for  three  years.  In  1813,  P.  reconveyed  to  him 
the  eighty  acres.  Afterward,  in  July  of  the  same  year,  C.  con- 
veyed''to '  the  plaintiff,  by  mortgage,  "all  the  homestead  farm 
where  he  formerly  lived,  and  leased  to  K.,  or  however  otherwise- 
described,  containing  120  acres,  be  the  same  more  or  less,"  and 
subsequently  mortgaged  to  the  defendant  the  eighty  acres.  The 
court  held  that  the  120  acres  passed  by  the  mortgage  to  the 
plaintiff,  and  not  the  200  acres  occupied  as  the  homestead  by  the 
mortgagor  prior  to  the  year  1838  {Bell  v.  Sawyer,  32  A^.  //.  i?., 

T2). 

A  case  was  decided,  a  few  years  ago,  by  the  Supreme  Court  of 
Connecticut,  wherein  it  appeared  that  the  premises,  in  a  deed  of 
land,  were  described  as  "  the  north  half  of  a  certain  lot  of  land, 
with  the  store  standing  on  said  north  half,"  and  the  whole  lot  was 
bounded  in  said  deed,  and  said  north  half  described  as  "  bounded 
south   on   the  grantor's   own  land,"  and  a  corner  of  said  store, 
which   was  a   permanent   building,    projecting   a   short  distance 
beyond  aline  drawn  from  a  point  in  the  middle  of  the  front  line 
of  said  lot,  to  a  point  in  the  middle  of  the  rear  line  thereof.     Tlie 
court  held  that  said  deed  conveyed  the  north  half  of  said  lot  as 
designated  by  said  line,  and  also  so  much  south  of  said  line  as 
was  covered  by  said  store  {Dikeman  v.  Taylor,  24  Conn.  B.,  219). 
The  Supreme  Court  of  New  Hampshire,  not  many  years  since, 
decided   a   case  where  the  description  of  the  land  in  the  deed 
was,  "  a  certain  dwelling-house,  being  the  same  in  which  I  now 
live,  and  is  the  same  owned  by  E.  W."     It  appeared  that  there 
was  land  in  rear  of  the  house,  used  by  E.  W.  and  the  succeeding 
owners  and  occupiers  in  connection  with  the  house,  for  the  pur- 
pose of  a  wood-yard,  and  essential  to  its  convenient  enjoyment  as 
a  dwelling-house.     The  court  held  that  the  said  land  in  rear  of 
the  house  passed  with  the  house  as  incident  to  and  a  part  of  the 
house  (  Wi7ichester  v.  Ilees,  35  JV.  H.  R.,  43).     And  the  same  court 
held  at  a  subsequent  term,  that,  under  the  descriptioQ  of  a  "  rope- 


2]  2  LAW  OF   nOUNBAETES. 

walk  "  in  a  deed,  sncli  land  of  the  grantor  will  pass  as  -is  exclu- 
sively devoted  to  the  use  of  the  rope-walk  {Davis  v.  IlawUy,  37 
I^.  H.  R.,  65). 

The  Supreme  Judicial  Court  of  Massachusetts  recently  decided 
a  case,  involving  the  same  principles  of  construction  as  were 
involved  in  the  last  two  cases  before  the  'Eqw  Hampshire  courts. 
The  conveyance  was  in  fee  of  a  house  and  land,  and  "also  a  well 
of  wate)',  with  the  curbs,  pumps,  and  all  utensils  belonging  to 
them,  as  the  same  now  stands  in  my  other  land,  and  a  right  at  all 
times  to  pass  and  repass  to  and  from  the  said  well  of  water  through 
my  said  other  land,  and  to  set  up  shears  or  any  other  machine  on 
my  said  land  for  the  purpose  of  repairing  said  well  of  water  and 
the  pumps  therein,  whenever  the  grantee  may  think  proper  so  to 
do ;  reserving  to  myself  and  my  heirs  and  assigns  the  free  and 
uninterrupted  privilege  of  the  hand-pump  in  the  aforesaid  well, 
and  of  ihe  said  well  and  water  at  all  times."  The  court  held 
that  this  deed  passed  the  fee  in  the  land  occupied  by  the  well. 
And  the  rule  was  laid  down  that  land,  occupied  and  improved  by 
buildings  or  other  structures  designed  for  a  particular  purpose, 
which  comprehends  its  beneficial  use  and  enjoyment,  will  pass 
by  words  which  describe  that  purpose  {Johnson  v.  Raynor,  6 
Gray^s  R.,  107).  And  in  another  case,  before  the  same  court,  it 
appeared  that  a  boundary  line,  described  in  a  deed  of  land,  was 
"a  north  and  south  line  to  be  established  two  rods  east  of  black- 
oak,  toward  the  northerly  part  of  said  lot  and  a  point  of  two  rocks, 
supposed  to  be  south  of  the  middle  of  said  lot."  The  court  held 
that  this  boundary  line  was  a  straight  line,  and  could  not  be 
proved  to  be  a  crooked  line  by  evidence  of  the  acts  of  the  parties 
establishing  monuments  upon  the  line  {Jenls  v.  Morgcm,  6  Gray^s 
R..  448).  And  still  another  case,  decided  by  the  same  court,  at 
about  the  same  time,  a  construction  was  given  to  a  particular 
deed.  The  land  conveyed  was  described  in  the  deed,  after  an 
accurate  statement  of  its  northern  and  western  boundaries,  as 
bounded  "  southerly  partly  on  land  of  B.,  and  partly  on  the  Great 
Brook,  and  from  the  brook  to  the  turnpike  road  on  land  set  off  to 
H.  A.;  and  bounded  northerly  on  the  turnpike  road;  being  all 
that  i)art  of  the  farm  of  E.  A.,  deceased,  which  was  set  off  to  A. 
A.  as  his  share  of  said  farm.  For  a  particular  description,  refer- 
ence may  be  had  to  the  return  of  the  distribution  of  the  estate  of 
R.  A.  in  the  probate  office."     The  land  of  R.  extended  along  the 


COXSTRUCTIOX  OF  PARTICULAR    GRANTS.  '21  6 

\vesterly  half  of  tlie  southern  boundary  of  the  hind  conveyed,  and 
was  itself  bounded  on  the  south  by  the  Great  brook,  which 
extended  from  the  south-east  corner  of  B.'s  land  eastwardly  to  the 
turnpike ;  and  the  turnpike  ran  north-westwardly  from  the  Great 
brook  to  the  north-east  corner  of  the  land  conveyed.  The  report 
of  the  partition  of  the  estate  of  R.  A.  was  lost ;  but  the  jury  found 
that  the  line  established  thereby  between  A.  A.  and  H.  A,  was  a 
continuation  of  the  northern  line  of  B.'s  land  eastwardly  to  the 
turnpike;  the  land  set  off  to  A.  A.  lying  north  of  that  line,  and 
between  the  northerly  and  westerly  boundaries  of  this  deed  and 
the  turnpike,  and  that  set  off  to  H.  A.,  lying  south  of  that  line. 
The  court  held  that  the  Great  brook  must  be  rejected  as  a  monu- 
ment, as  inconsistent  with  the  residue  of  the  description  ;  and  that 
the  southern  boundary  of  the  land  conveyed  was  the  northern  line 
«if  B.'s  land  and  the  division  line  as  found  by  the  jury.  And  the 
rule  was  laid  down  that  a  false  demonstration,  though  a  reference 
to  a  natural  monument,  may  be  yielded  in  construing  a  deed 
(Parks  V.  Loomis,  G  Gray's  i?.,  467). 

A  case  came  before  the  Supreme  Court  of  Pennsylvania,  a  few 
years  sirice,  in  Avhich  was  involved  the  construction  of  a  deed 
describing  land  by  a  boundary,  "beginning  at  a  stake  on  the 
north-east  corner  of  E.  and  K.  streets;  and  thence  along  the 
north-east  side  of  said  E.  street,"  etc.  The  court  held  that  the 
deed  conveyed  the  land  to  the  middle  of  the  street,  if  the  grantor 
owned  so  far,  as  he  had  not  reserved  it,  although  the  measurements 
were  from  or  to  the  side  of  the  street.  And  the  court  declared, 
as  pertinent  in  the  case,  that  so  frail  a  witness  as  a  stake  is  scarcely 
Worthy  to  be  called  a  monument,  or  to  control  the  construction  of 
a  deed  {Cox  v.  Freedley^  33  Penn.  i?.,  IS-l). 

But  the  Supreme  Judicial  Court  of  Massachusetts  decided  a 
case,  about  the  same  time,  in  which  was  involved  a  grant  of  land, 
described  as  bounded  by  certain  courses  "to  a  stake  by  land  laid 
out  by  the  grantor  for  a  street;  thence  southerly  by  said  street." 
The  court  held  that  the  grant  extended  only  to  the  side  of  the 
street,  provided  it  was  shown  that  the  stake  was  there.  It  was 
observed,  however,  that  a  grant  of  land  "  to  a  street  one  rod  and 
a  half  wide,  thence  northerly  by  said  street,"  passed  the  land  to 
the  center  of  the  street  {Phillijys  v.  Bowers,  7  Gray's  7?.,  21). 
Tiie  doctrine  of  these  two  cases  is  not  necessarily  variant,  although 
they  are  different  in  their  results.     The  language  of  the  convey- 


214  LAW  OF  BO UND ARIES. 

ances  was  not  similar  in  all  particulars ;  and,  hence,  a  different 
construction  was  applied. 

A  peculiar  case  came  before  the  Supreme  Court  of  Ohio,  not 
lono-  since,  in  which  it  appeared  that  lots,  adjoining  on  the  east 
and  west,  were  sold  by  numbers,  and  a  plat,  at  the  same  time,  to 
A.  and  B.  separately.  The  lines  of  division  were  not  designated ; 
but  the  locations  were  fixed  by  reference  respectively  to  known 
and  fixed  monnments  on  the  east  and  west.  Each  deed  described 
the  lots  as  of  the  width  indicated  by  the  plat,  more  or  less.  On 
measurement,  the  width  thus  given  would  not  bring  the  lots 
together,  while  the  plat  showed  they  were  intended  to  meet,  and 
that  the  whole  was  intended  to  be  sold.  The  court  held  that  the 
surplus  should  be  divided  between  A.  and  B.,  in  proportion  to  the 
leno-ths  of  their  respective  lines  shown  by  the  flat,  and  given  in 
the  deeds  {Harsh  v.  Stepheiison,  7  Ohio  12.,  JV.  S.,  264). 

The  Supreme  Conrt  of  Maine,  in  a  case  recently  before  it,  where 
it  appeared  that  the  last  call  in  a  deed,  describing  the  territory  in 
township  No.  21,  was  from  an  undisputed  point  of  departui-e, 
"  thence  south-westerly  by  a  line  to  be  run  between  townships  'No. 
21  and  No.  22,  to  the  place  of  beginning,"  held  that  the  call  repu- 
diated all  former  lines  between  the  termini  mentioned,  and  that 
the  line  to  l)e  run  must  be  the  shortest  distance  between  the  points 
named.  And  it  was  decided  that  a  subsecpient  clause  in  the  deed, 
"according  to  a  survey  and  plan  of  said  township  by  P.  and  D.," 
could  not  control  or  modify  the  preceding  language.  And  the 
court  held  further,  in  the  case,  that  an  instruction  to  the  jury  that 
another  line,  admitted  to  have  been  run  by  the  proprietors  prior 
to  the  date  of  the  deed  to  the  plaintiffs,  purporting  to  be  the  true 
line  between  townships  21  and  22,  was  the  controlling  monument 
answering  the  call,  and  that  the  point  of  departure  must  be 
]'e]ected  as  inconsistent  with  the  other  and  superior  monument 
referred  to  in  the  deed,  was  incorrect  and  erroneous  {Grant  v. 
J^lack,  53  Maine  B.,  373).  And  the  same  court  decided  a  case, 
about  the  same  time,  wherein  it  appeared  that  a  party  conveyed 
by  deed  of  wai-]-anty  certain  premises,  and  described  them  as  fol- 
lows, to  wit :  "  The  north  half  of  the  double  dwelling-house, 
erected  by  S.  and  situated,  etc.,  together  with  the  land  under  the 
same,  and  the  land  used  with  it  and  belonging  thereto,  and  all  out- 
buildings and  fences  thereon  and  thereto  belonging,  being  the 
same  premises  heretofore  occupied  by  me  as  a  dwelling-house." 


CONSTRUCTIOX  OF  PARTICULAR    GRANTS.  21i> 

The  court  held,  1.  That  the  words  "  belonging  thereto"  referred  to 
the  house,  and  not  to  the  grantor.  2.  That  the  words  "  out- 
buildings thereon"  meant  the  out-buildings  on  "the  land  used 
\vith"  the  house.  3.  That  a  barn  was  one  of  the  out-buildings, 
and  that  the  deed  convej'ed  such  barn  and  the  land  on  which  it 
stood  (  Woodman  v.  Smith,  53  Maine  R.,  70). 

In  a  late  case  before  the  Supreme  Judicial  Court  of  Massachu- 
setts, it  appeared  that  A.  conveyed  a  lot  of  land  to  W.,  "situate 
on  the  northerly  side"  of  a  certain  street,  and  "bounded  and 
described  as  follows:  beginning  at  a  point  on  the  line  of  land  of 
B. ;  thence  by  said  street  north  Hfty-eight  and  three-quarters 
degrees  west,  about  one  hundred  feet,  to  a  stake  and  stones  at  the 
corner  of  land  of  G. ;  thence  north  thirt^'-one  and  a  quarter 
degrees  east  to  the  river;  thence  by  said  B.'s  land  to  the  first 
mentioned  bound."  The  court  held  that  the  fee  of  the  land  to 
the  center  of  the  street  passed  to  W.,  it  appearing  that  A.  was 
seised  thereof  at  the  time  of  this  conveyance  {White  v.  Godfrey^ 
97  Mass.  R.,  472).  And  the  same  court,  very  lately,  disposed  of 
another  case  involving  the  construction  of  a  deed,  which  was 
somewhat  peculiar  in  its  phraseology.  The  deed  under  which  the 
claim  arose  first  clearly  described  all  the  boundaries  of  "  one  piece 
of  land  lying  the  south  side  of  the  count}'^  road,"  on  both  sides  of 
a  certain  river,  bounded  on  one  Cole's  land  on  the  west,  by  a 
definite  line  on  the  south,  and  by  one  Bartlett's  land  on  the  east. 
The  deed  then  added,  "  all  the  land  situate  and  lying  north  of  the 
road  aforesaid,  bounded  north  of  the  lines  of  Matthew  Clark's 
land,  and  west  on"  another  road  distinctly  identified.  Upon 
ap[)lying  the  deed  to  the  land,  as  shown  on  the  plan  presented, 
the  court  was  of  the  opinion  that,  taking  the  whole  deed  together, 
the  words  "bounded  north  of  the  lines  of  Matthew  Clark's  land" 
defined  the  northern  boundary  of  the  premises  granted.  This 
was  thought  to  be  so  obviously  the  only  construction  which  would 
make  the  whole  description  coherent,  that  the  court  was  ready  to 
hold,  if  necessary,  that  the  word  "  of,"  in  this  clause  of  the  deed, 
had  been  used  in  its  obsolete,  but  perfectly  grammatical,  meaning 
of  "  by,"  as  in  the  familiar  examples  —  "run  of  men"  —  "led  of 
the  spirit"  —  "tempted  of  the  devil;"  although  the  court  more 
naturally  inferred  that  the  scrivener,  in  writing  the  description  in 
the  deed,  had  inadvertently  used  the  preposition  "of,"  instead  of 
the  word  "  in,"  as  he  did  in  the  next  followino:  clause.     The  court 


216  LAW   OF  BOUyDARIhS. 

therefore  held  that  the  deed  in  question  included  only  lands 
lying  compactly  together,  and  not  the  outlying  lot  farther  to  the 
north,  which  was  separated  by  the  land  of  Matthew  Clark's  lines 
from  the  other  lands  described  {Ilamium  v.  Klngsley,  107  Mass. 
R.,  355).  And  in  another  late  case,  before  the  same  court,  wherein 
it  appeared  that  a  part  of  the  description  of  a  boundary  was : 
"  Commencing  at  a  point  250  feet  north-westerly  from  Washing- 
ton street,  on  the  line  of  a  private  way,  and  running  north-west- 
erly, *  *  *  easterly,  *  *  *  southerly,  *  *  *  west- 
erly by  the  fence,  *  *  *  and  continuing  in  the  same  direc- 
tion until  it  comes  to  said  private  way  or  point  of  beginning," 
the  court  held  that  the  east  line  must  be  continued  on  the  line  of 
the  fence,  though  it  thereby  struck  the  private  way  at  a  point 
nearer  than  250  feet  to  the  street  {Needham  v.  Judson,  H)l  Mass. 
i?.,  155). 

In  a  late  case,  decided  by  the  Supreme  Court  of  Pennsylvania, 
it  appeared  that  a  grantor  conveyed  a  subdivision  of  his  land  by 
deed,  reciting  the  last  line  as  identical  with  his  eastern  boundary; 
but,  by  mistake,  the  line  was  located  200  perches  west  of  it.  The 
court  hehl  that  the  calls  in  the  deed  were  controlled  by  the  line 
as  located;  and  declared  that  the  mistake  did  not  injure  tlie 
grantee,  he  having  received  all  tlie  land  he  had  purchased  {Craft 
v.  Yeaney^  QQ  Penn.  R.,  210). 


CHAPTER  XYIII. 

TASES  PASSKD  UPON  BY  THE  COURTS  RELATING  TO  BOUNDARY  OF  LANDS 
ADJOINING  THE  SEA  AND  RIVERS,  AND  OTHER  BODIES  OF  WATER  AND 
STREAMS CASES  MISCELLANEOUSLY  STATED. 

It  may  be  convenient  to  have  the  leading  cases  which  have 
been  decided  by  the  courts,  in  which  particular  conveyances  have 
been  construed  in  respect  to  the  boundary  of  lands  upon  tlie  sea 
and  other  bodies  of  water  and  streams,  grouped  togetlier  in  one 
place  ;  and  this  chapter  will,  therefore,  be  devoted  to  an  examina- 
tion of  those  cases,  but  without  regard  to  the  chronological  order 
in  which  they  occurred  or  the  places  where  they  were  decided. 
It  will  have  been  observed,  however,  that  a  few  of  such  cases  are 


LAyDS    WITH    WATER   BOUXD ARIES.  217 

noted  in  precedino-  cliapters.     Some  t^venty  years  ago,  a  case  was 
decided    by  the  Supreme    Court  of  xMuine,  wl>erciu   it   appeared 
■  that  hind  was  descril)ed  in  a  deed  as  containing  two  and  a  halt 
acres  of  salt  marsh,  and  as  being  within  the  following  bounds : 
Be-inning  at  a  corner  by  the  beach,  and  running  by  a  given  Imo 
to  a  creek"  and  by  the  creek  to  a  certain  marsh,  and   then   by  the 
marsh  to  a  ditch,  and  then  by  the  ditch  to  the  beach,  and  ruunmg 
by  the  beach  to  the  place  begun  at.     The  court  held  that  the  land 
granted  adjoined  upon  the  land  washed  by  the  waves  ot  the  sea 
althouo-h  the  quantity  of  land  within  the  boundaries  exceeded  that 
named'in  the  deed,  and  although  the  ditch  did  not  extend  the 
whole  distance  to  the  beach.     And  the  court  further  held  that  the 
word  "beach"  must  be  construed  to  designate   land  washed  by 
the  sea,  and  to  be  synonymous  with  "  shore  "  {Llttlefield  v.  Lit- 
tlefidd,  28  Maine  i?.,  180).  ^ 

'jn   a  case  decided  by  the   Supreme    Court  of  Illinois,   several 
years  since,  it  appeared  that  in  a  grant,  by  the  United  States,  ot 
land  bordering  on   a  stream  not  navigable,  laid  down  upon   the 
minutes  of  the  surveyor  in  his  ofhce  as  meandering,  but  there 
M-as  no  marked  line  upon  the  plat  by  which  the  grant  was  made 
limiting  the  grant  to  the  margin  of  the  stream.     The  court  held 
tliat  the  grantee  took  to  the  center  thread  of  the  stream,  and  that 
the  meandered  line,  run  for  the  purpose  of  determining  the  quan- 
tity of  the  land  in  the  fraction,  was  not  a  boundary.     And   the 
general  doctrine  was  laid  down,  that  the  grantee  of  land,  border- 
in.^  on  a  stream  not  navigable,  takes  to  the  center  of  the  stream, 
mdess  there  is  an  express  reservation  confining  him  to  the  margin  ; 
and  that  he  is  entitled  to  recover  damages  against  a  party  who,  to 
his  injurv,  diverts  the  water  passing  over  his  land  from  its  natural 
channel  "(Canal  Trustees  v.  Haven,  5  Gllmaii's  R.,  5i8).      ^ 

A  case  was  decided  by  the  Supreme  Court  of  the  State  ot  New 
York  soon  after  the  present  judiciary  of  the  State  went  into 
effect'  involvin-  the  construction  of  the  language  in  a  grant  from 
the  State  Th^e  patent  issued  by  the  State  described  the  land 
granted  as  running  "  north  twenty-three  degrees  east  to  J^ie  river 
and  thence  down  along  the  said  river,"  etc.  The  court  held  that, 
in  the  absence  of  any  circumstances  to  control  the  construction, 
and  to  show  the  actual  intention  of  the  parties  to  be  otherwise, 
this  description  would  afford  presumptive  evidence  of  a  design  to 
carry  the  north  line  of  the  lot  to  the  middle  of  the  river.  13ut 
28 


218  LAW  OF  BOUND  ABIES. 

that  it  was  only  presumptive  evidence  which  was  liable  to  be 
overcome  by  evidence  of  a  different  intent.  And  in  this  case,  the 
court  was  of  opinion  there  was  evidence  to  show  that  the  princi- 
ple of  riparian  ownership  was  not  intended  to  apply  to  the  patent 
nnder  consideration,  and  that  the  grant  did  not,  therefore,  carry 
the  grantee  to  the  thread  of  the  stream  {Orendorf  v.  Steele,  2 
Barh.  E.,  126).  And  in  a  later  case  before  the  same  court,  wherein 
it  appeared  that  a  grant  of  land  from  the  State  described  the  land 
to  be  located  as  "  all  that  square  mile  beginning  at  the  mouth  of  a 
creek  nearly  opposite  to  the  head  of  Grand  Isle  on  the  easterly 
side  of  the  outlet  of  Lake  Erie,"  and  the  northern  boundary  was 
to  run  "  westerly  to  the  waters  of  the  said  outlet,  and  thence 
along  the  same  to  the  place  of  heginning;  it  was  held  that  the 
language  employed  denoted  an  intention  to  stop  at  the  edge  or 
margin  of  the  river.  But  it  was  also  held  in  the  case  that  the 
common-law  rule,  as  applied  to  the  construction  of  descriptions  in 
a  deed  bouudiag  the  premises  by,  or  along,  or  upon  a  river,  has 
no  application  to  lands  bounded  by  the  Niagara  river,  because  that 
river  turins  a  natural  boundary  between  this  country  and  a  foreign 
nation  {Kingman  v.  Sparrow,  12  Barh.  R.,  201).  The  case  had 
been  before  decided  by  the  old  Supreme  Court  of  tlie  State,  atid 
then  taken  to  the  Court  of  Appeals,  where  the  judgment  of  the 
Supreme  Court  was  reversed,  and  a  new  trial  granted,  but  not  on 
the  ground  of  error  in  the  construction  of  the  grant  in  the  particu- 
lars indicated,  but  upon  other  grounds  entirely ;  the  question  of 
construction,  as  discussed  by  the  present  Supreme  Court,  does  not 
seem  to  have  been  passed  upon  by  the  Court  of  Appeals  in  any 
way  whatever  {Sparrow  v.  Kingman,  1  K.  Y.  B.,  2-42).  And 
the  case,  as  decided  in  the  12th  of  Barbour,  has  been  several  times 
referred  to  as  authority  by  the  Supreme  Court,  and  the  construc- 
tion there  put  upon  the  language  of  the  description  contained  in 
the  grant  is  doubtless  correct. 

Anotlier  case  before  tlie  present  Supreme  Court  of  New  York, 
involving  the  interpretation  of  a  conveyance  bounding  land  upon 
the  Hudson  river,  was  elaborately  discussed  and  carefully  con 
sidered.  The  deed  passed  upon  by  the  court  described  the  west 
line  of  the  premises  conveyed  as  running  south  "  to  the  north 
bounds  of  Hudson  river,  thence  easterly  along  the  said  river,  so 
as  to  include  so  much  of  the  island  as  is  situated  within  lot  ISTo.  2, 
which  island  lies  near  the  said  north  bounds  of  Hudson  river,"  etc. 


LAiWDS    WITH   WATER  BOUNDARIES.  210 

The  court  held  that  this  boundary  carried  the  grantee  to  the  cen- 
ter of  the  main  channel  of  the  river,  and  not  merely  to  the  bank. 
The  land  conveyed  was  situated  upon  the  river  above  tide-water, 
and  where  the  river  was  not  actually  navigable.  Willard,  J.,  in 
delivering  the  opinion  of  the  court,  said:  "At  common  law,  a 
grant  of  land  bounded  upon  the  sea-shore,  or  upon  a  stream  or 
arm  of  the  sea,  where  the  tide  ebbs  and  flows,  conveys  to  the 
grantee  only  that  part  of  the  bank  which  is  not  covered  by  the 
water  at  the  ordinary  flood  tide.  It  does  not  carry  with  it  the 
lands  under  the  water,  the  island  in  the  stream,  or  the  right  of 
fishery.  In  order  to  pass  these,  the  terms  of  the  grant  must  be 
so  clear  and  explicit  as  to  leave  no  manner  of  doubt  as  to  the 
intention  of  the  grantor  to  part  with  those  rights.  But  the  rule 
is  directly  the  reverse  as  to  those  grants  which  are  bounded  on 
rivers  and  streams  above  tide-water.  In  such  cases,  if  the  grant 
is  bounded  on  the  stream,,  or  along  the  same,  or  on  the  margin 
thereof,  or  on  the  hanh  of  the  river,  or  where  any  other  words  of 
similar  import  are  used,  it  legally  extends  to  the  middle  or  thread 
of  the  stream ;  and  not  only  the  bank  but  the  bed  of  the  river, 
and  the  island  therein,  and  the  exclusive  right  of  fishing,  are  con- 
veyed to  the  grantee,  unless  they  are  expressly  reserved,  or  the 
terms  of  the  grant  are  such  as  to  show  a  clear  intention  to  exclude 
them  from  the  general  operation  of  the  rule  of  law.  *  *  * 
The  case  under  consideration  does  not  foil  under  any  of  those 
which  restrict  the  boundary  to  the  bank,  and  exclude  the  river. 
The  west  line  of  the  lot  runs  north  till  it  strikes  '  the  north  hounds 
of  Hudson  river,  thence  easterly  along  the  said  river,  so  as  to 
include  so  much  of  the  island  as  is  situated  in  lot  No.  2.'  Even 
the  words  along  the  said  river,  axe  prima  facie  suflicient  to  indi- 
cate the  center  of  the  stream  as  the  line.  The  words  so  as  to 
include  the  island,  etc.,  were  inserted,  lest  a  doubt  might  be  enter- 
tained as  to  which  channel  of  the  river  would  be  meant  by  the 
words  along  the  said  river.  The  word  'bounds'  of  the  river,  in 
this  deed,  do  not  indicate  the  bank  or  shore  of  the  river,  but  the 
center"  (  Walton  v.  Tift,  14  Barh.  R.,  216,  218-221). 

An  interesting  case  was  decided  by  the  Supreme  Court  of  the 
United  States,  a  fewjears  ago,  involving  the  division  line  between 
the  States  of  Alabama  and  Georgia,  the  principles  of  which  may 
be  applied  in  some  cases  of  private  property  bounded  upon  rivers 
and  other  unnavigable  streams.     In  the  boundaries  of  these  States, 


220  LAW   OF  DOLWDARISS. 

as  fixed  by  the  contract  of  cession  from  the  United  States,  the  fol- 
lowing clause  gave  rise  to  the  dispute:  "  A  line  up  said  river  and 
along  the  western  bank  thereof."  Tlie  court  held  this  to  include 
the  bed  of  the  river;  and  the  bed  of  the  river  was  defined  to  be 
that  portion  of  tlie  soil  which  is  alternately  covered  and  left  bare 
as  tliere  may  be  an  increase  or  diminution  in  the  supply  of  water, 
and  which  is  adequate  to  contain  it  at  its  average  and  mean  stage 
during  the  entire  year,  without  reference  to  extraordinary  freshets 
of  the  winter  or  spring,  or  the  extreme  droughts  of  summer  or 
autumn.  That  is  to  say,  the  court  held  that  the  western  line 
innst  be  traced  on  the  water-line  of  the  acclivity  of  the  western 
bank,  and  along  that  bank  where  that  was  defined ;  and  in  such 
places  on  the  river  where  the  western  bank  was  not  defined  (where 
it  ran  into  great  swamps)  it  must  be  continued  up  the  river  on  the 
line  of  its  bed,  as  that  was  made  by  the  average  and  mean  stage 
of  the  water,  as  was  before  stated.  And  the  court  laid  down  the 
rule  in  the  case,  that  a  contract  of  cession  between  States  or  the 
United  States  and  a  State,  as  it  respects  their  respective  rights  in 
a  dividing  river,  must  be  interpreted  by  tlie  words  of  it,  accord- 
ing to  their  received  meaning  and  use  in  the  language,  as  collected 
from  judicial  opinions  concerning  the  rights  of  persons  upon  rivers, 
and  the  writings  of  publicists  in  reference  to  the  settlement  of 
controversies  between  nations  and  States  as  to  their  ownership  and 
jurisdiction  on  the  soil  of  rivers  within  their  banks  and  beds  ; 
which  authorities  are  to  be  found  in  cases  in  our  own  country,  and 
in  those  of  every  nation  in  Europe  {Alabama  v.  Georgia,  23  IIoic. 
i?.,  505). 

A  late  case  before  the  Supreme  Court  of  the  State  of  Maine, 
involving  a  water  boundary,  was  this :  By  a  deed  of  a  parcel  of 
land,  the  east  line  of  which  was  described,  "thence  east  until  it 
strikes  the  creek  on  which  the  mill  stands,  thence  south-westerly 
on  the  west  bank  of  said  creek"  (which  was  a  small  unnavigable 
fresh-water  stream).  The  court  held  that  by  this  deed  the  g^rantee 
was  restricted  to  the  bank  of  the  creek ;  that  such  grant  did  not 
extend  to  the  center  or  thread  of  the  stream,  unless  there  were, 
in  the  deed,  other  words  indicating  that  such  was  the  intention  of 
the  grantor.  And  the  court  reiterated  the  rule  that,  wliei'e  a 
grant  is  bounded  upon  a  non-navigable  fresh-water  stream,  a  high- 
way, or  ditch,  or  party-wall,  and  the  like,  such  stream,  highway 
or  other  object  is  deemed  to  be  a  monument,  located  equally  upon 


LAynS    WITH   WATER   BOUNDARIES.  221 

tlie  land  granted  and  tlie  adjoining  land,  and  the  grant  extends 
to  the  center  of  snch  monument  {Bradford  v.  Cressey^  45  Maine 
i?.,  9).  And  the  same  court  decided  an  earlier  case,  in  which  it 
appeared  that  the  boundary  described  in  the  deed  was,  running 
"  to  the  pond  to  a  stake  and  stones."  The  court  held  that  the 
grantee  was  restricted  to  the  stake  and  stones,  if  they  could  be 
found,  or  their  original  location,  but  if  neither  could  be  identified 
then  "  to  the  pond."  And  the  court  laid  down  the  well-settled 
rule,  that  natural  monuments  must  control  both  course  and  dis- 
tance. And  further,  that  where  land  is  bounded  upon  a  pond,  if 
it  is  in  its  natural  state,  the  grant  extends  only  to  the  water's 
edge ;  but  the  rule  is  otherwise,  where  the  pond  is  an  artificial 
one  {Rolj'insoii  v.  ^Vhite,  42  Maine  B.,  209).  And  in  a  still  earlier 
case  before  the  same  court,  the  conveyance  under  consideration 
bounded  the  land  intended  to  be  granted,  generally,  on  a  fresh- 
water pond,  which  it  appeared  had  been  enlarged  by  means  of  a 
dam  at  its  mouth,  and  the  court  held  that  the  deed  conveyed  the 
land  as  far  as  the  low-water  mark  of  the  pond,  in  its  enlarged 
state  ( Wood  v.  J{elley,  30  Maine  E.,  47). 

An  important  case  came  before  the  Supreme  Court  of  New 
Jerse}',  a  few  years  «ince,  in  which  it  appeared  that  the  deed  of 
the  land  intended  to  be  conf  eyed  described  the  lot  as  lying  "  in 
the  vicinity  of  and  on  the  margin  of  New  York  bay."  The  court 
decided  tliat  the  conveyance  made  the  bay  a  boundary,  and  con- 
stituted the  grantee  a  shore  owner  {State  v.  Brown,  3  Butcher's 
i?.,  13). 

The  Supreme  Court  of  the  State  of  Connecticut  recently  decided 
a  case  involving  the  construction  of  conveyances  bounding  pre- 
mises on  a  canal.  It  appeared  that  two  persons  were  owners  of 
land  in  severalty,  situated  upon  both  sides  of  a  canal ;  and  they 
made  an  exchange,  by  which  one  party  conveyed  to  the' other  all 
his  land  east  of  the  canal,  and  the  latter  conveyed  to  the  former 
all  his  land  west  of  the  canal.  The  land  conveyed  by  the  respect- 
ive deeds  was  bounded  "on  said  canal."  The  court  held  that  the 
intention  of  the  parties,  as  shown  by  the  language  of  the  deeds 
and  the  circumstances  of  the  case,  was  clearly  apparent,  that  tlie 
center  of  the  canal  was  to  be  taken  as  the  dividing  line  between 
them,  and  the  conveyances  were  so  construed  {Agawam  Canal 
Comipany  v.  Edwards,  36  Conn.  B.,  476,  500). 
,  And  the  Supreme  Court  of  California,  in  the  year  1869,  decided 


222  Z A  TV   OF  BOUNDARIES. 

a  case  calling  for  the  construction  to  be  put  upon  the  language  of 
a  patent,  in  which  the  land  was  described  as  "  bounded  on  the 
south  by  the  sea-shore,  on  the  north  by  the  foot  of  the  ledge  ol 
mountains,"  etc.  The  patent  was  for  a  confirmed  Mexican  grant 
of  land,  and  referred  to  a  decree  of  court,  and  the  plat  and  survey 
of  the  Surveyor-General,  giving  courses  and  distances,  which 
decree  bounded  the  land  on  the  sea-shore  on  one  side ;  but  the 
calls  and  plat  of  the  survey  extended  from  the  interior  to  the  sea- 
shore, and  then  extended  along  the  sea-shore  in  places  at  and 
below  tide  to  a  point  on  the  shore,  and  the  patent  granted  the 
land  described  in  the  survey.  The  court  construed  the  patent  as 
conveying  the  land  only  to  the  high-tide  line  along  the  shore. 
Rhodes,  J.,  delivered  the  opinion  and  said :  "  To  ascertain  the 
land  granted,  the  several  portions  of  the  patent  must  be  read  and 
construed  together.  The  land  confirmed  is  bounded  on  the  south 
by  the  sea-shore ;  and  the  land  included  within  the  line  of  survey 
will  also  be  held  to  be  bounded  on  the  south  by  the  sea-shore, 
unless  the  calls  imperatively  demand  other  boundaries.  When 
the  decree  of  confirmation  fixes  the  exterior  bounds  of  a  rancho, 
whether  it  is  one  granted  within  specified  boundaries,  or  one  of  a 
specified  quantity  within  a  large  area,  the  presumption  is  that  the 
lines  of  the  survey  coincide  with,  or  at  least  do  not  extend 
beyond,  the  exterior  limits  or  bounds  of  the  decree  ;  for  the  survey 
is  not  an  independent  act,  but  is  an  act  performed  under  the 
decree,  and  preparatory  to  its  being  carried  into  efiect  by  a  patent. 
Courts  will  give  effect  to  every  part  of  the  description  of  premises 
in  a  deed  or  grant,  if  it  is  possible,  consistently  w^ith  the  rules  of 
law ;  but  if  this  cannot  be  done,  they  reject  that  which  is  repug- 
nant to  the  general  intent  of  the  instrument.  It  appears  by  the 
plat  that,  following  the  courses  and  distances  of  the  survey,  por- 
tions of  the  sea  will  be  included  in  the  lines  of  the  rancho.  This 
is  inconsistent  with  the  calls  of  the  decree  r-f  confirmation,  which 
confirms  a  tract  bounded  by  the  sea-shore.  It  is  a  general  rule  in 
the  construction  of  grants  and  deeds  of  conveyances,  containing 
descriptions  of  premises,  one  part  of  which  is  inconsistent  with  or. 
repugnant  to  another,  that  visible  local  objects  or  monuments, 
mentioned  in  the  conveyance,  will  control  both  courses  and  dis- 
tances. The  survey  mentions  the  sea-shore  as  the  termination  of 
the  fourth  course,  and  the  twelfth  course  commences  at  the  sea- 
shore; but  at  the  intermediate  stations  no  visible  object  nor  anj 


LAXDS    WITH    WATER  BOUNDARIES.  223 

momiiiient,  eitlier  natural  or  artificial,  is  meutioned.  The  call  for 
the  sea-shore,  as  the  northern  boundary,  must  be  regarded  as  the 
more  definite  and  certain,  'and  will  prevail  over  a  call  for  a  new 
station,'  and  over  the  courses  and  distances"  i^More  v.  llassini, 
37  Cal.  Ji.,  432,  436,  437).  In  a  later  case,  decided  by  the  same 
court,  the  description  of  the  land  in  the  deed  before  the  court  was 
as  follows :  "  Commencing  at  low-water  mark  in  range  with  a 
ditch  in  the  line  of  land  occupied  by  John  C.  Piercy,  running 
southerly  along  said  ditch  to  its  most  southern  extent,  about  one 
hundred  and  forty  rods;  thence  westerly  along  said  ditch  ten  rods 
to  a  line  of  fence;  thence  westerly  along  said  fence  to  Zcu'-water 
mark,  in  range  with  said  fence  and  the  west  bank  of  a  small  creek, 
running  into  tlie  bay  ;  thence  eastwardly  along  loiv-water  mark  to 
the  place  of  beginning,  about  forty-five  rods."  Comparing  tliis 
description  with  the  actual  location  of  the  land,  it  appeared  that  if 
the  starting  call  in  the  deed  was  taken,  and  the  lines  traced  from 
that  point,  nearly  all  the  land  would  consist  of  marsh  and  mud 
flats,  lying  below  high-water  mark  ;  and  "  that  the  most  southern 
extent "  of  the  ditch  on  the  line  of  Piercy's  land  would  not  be 
reached ;  that  no  cross-ditch,  ten  rods  in  length,  would  be  found 
for  a  southern  boundary,  and  no  fence  would  be  found  extending 
back  to  the  bay  from  the  west  end  of  a  cross-ditch,  and  no  mouth 
of  a  small  creek  emptying  into  the  bay  for  a  north-east  corner. 
But  by  taking  the  starting  point  at  ///^A-water  mark,  all  was  con- 
sistent and  right.  The  court  held  that  the  description  should  be 
construed  by  substituting  the  starting  call  in  the  deed  hig/i,  instead 
of  low-wntcv  mark.  Sanderson,  J.,  delivered  the  opinion  of  the 
court,  and,  among  other  things,  said  :  "  We  do  not  question  the 
rule  upon  which  counsel  relies,  that,  where  there  are  conflicting 
calls,  those  which,  from  their  nature,  are  less  liable  to  mistake 
must  control  those  which  are  more  liable  to  mistake ;  or  that  if 
the  starting  call  is  flxed,  certain  and  notorious,  and  there  is  a  con- 
flict between  it  and  other  calls,  the  latter  must  generally  give  way 
to  the  former;  but  the  rule  does  not  go  to  the  extent  of  declaring 
that  all  the  other  calls,  although  agreeing  among  themselves,  shall 
be  set  aside  solely  because  they  do  not  agree  with  the  first.  As  a 
general  proposition,  it  is  undoubtedly  true  that  mistakes  are  less 
likely  to  occur  in  relation  to  the  starting  point  than  in  respect  to 
the  succeeding  calls;  but  this  proposition,  as  we  think  this  case 
shows,  connot  be  accepted  as  universal.     It  undoubtedly  applies 


224  LAW   OF- BO  USD  A  HIES. 

with  full  force  when  the  starting  point  is  fixed,  certain  and  noto- 
rious, as  in  the  case  of  a  well  defined  monument,  and  the  succeed- 
ing calls  are  courses  and  distances,  or  even  monuments,  which  are 
conflicting  or  ill  defined ;  but  when  the  succeeding  calls  are  as 
readily  ascertained,  and  are  as  little  liable  to  mistake,  we  consider 
them  of  equal  veracity  with  the  first;  and  when  they  all  conflict 
with  the  first,  and  agree  with  each  other,  their  united  testimony 
must  control.  It  is  true  that  '  low-water  mark '  on  Mission  bay  is 
more  permanent  and  lasting  than  a  '  small  ditch  or  furrow ;'  but 
both  being  found  upon  the  ground  when  looked  for,  the  testimon^y 
of  the  latter  is  quite  as  reliable  as  that  of  the  former  {Piercy  v. 
Crandall,  34  Cat.,  334).  In  conclusion,  upon  this  branch  of  the 
case  we  deem  it  proper  to  say  that,  in  the  construction  of  written 
instruments,  we  have  never  derived  much  aid  from  the  technical 
rules  of  the  books.  The  only  rule  of  much  value  —  one  which  is 
frequently  shadowed  forth  but  seldom,  if  ever,  expressly  stated  in 
the  books  —  is  to  place  ourselves  as  near  as  possible  in  the  seats 
which  were  occupied  by  the  parties  at  the  time  the  instrument 
was  executed  ;  then,  taking  it  by  its  four  corners,  read  it  "  (  Walsh 
V.  JIUl,  38  Cal  E.,  481,  486,  487).  And  in  a  still  later  case, 
before  the  same  court,  a  construction  was  given  to  the  language  of 
a  statute  which  described  the  territory  as  "  beginning  at  the  stakes 
monument ;  thence  in  a  straight  line  to  a  point  on  the  San  Joaquin 
river  seven  miles  below  the  mouth  of  the  Merced  river."  The 
court  held  (the  stream  being  declared  navigable  by  statute)  that 
the  measurement  should  be  made  by  the  meanders  of  the  river, 
and  not  in  a  direct  line.  And  it  was  also  declared  that  the  same 
would  be  the  rule  where  distance  is  called  for  upon  a  traveled 
highway.  Temple,  J.,  delivered  the  opinion  of  the  court,  and 
said  :  "There  seems  to  be  no  conflict  whatever  in  the  authorities, 
that,  where  a  certain  distance  is  called  for  from  a  given  point  on  a 
navigable  stream  to  another  point  on  the  stream,  to  be  ascertained 
by  such  measurement,  the  measurement  must  be  made  by  its 
meanders,  and  not  in  a  straight  line  ;  and  the  same  rule  prevails 
where  distance  is  called  for  upon  a  traveled  highway.  A  difierent 
rule  is  sometimes  adopted  when  the  stream  is  not  navigable. 
Where  a  tract  of  land  is  bounded  upon  a  navigable  stream,  the 
distance  upon  the  stream  will  be  ascertained  —  in  the  absence  of 
other  controlling  facts  —  by  measuring  in  a  stright  line  from  the 
opposite  boundaries"  {People  v.  Henderson,  40  Cal.  R.,  29,  32). 


LANDS    WITH   WATER   BOUSDARIES.  225 

In  the  States  of  Maine  and  Massachusetts  some  rules  prevail  in 
respect  to  the  conveyance  of  "  flats,"  which  are  peculiar  to  those 
States,  by  reason  of  an  ancient  ordinance  exclusively  applicable  to 
the  territory  comprising  sncli  States,  known  as  the  "Ordinance  of 
1647."  A  case  of  tliis  description  was  decided  by  the  Supreme 
Coni't  of  Maine  some  twenty  years  ago,  in  which  it  appeared  that 
the  owner  conveyed  a  square  of  land,  bounded  by  the  sea,  "  reserv- 
ing a  street  through  the  square,  etc.,  together  with  tlie  flats, 
namely,  all  my  rights  to  the  same  in  front  of  said  square  to  the 
channel."  The  court  decided  that  the  flats  passed  by  the  deed. 
And  the  court  declared  the  doctrine,  as  being  pertinent  to  the 
case,  that  words  of  doubtful  import  in  a  deed  of  land  should  be 
construed  most  favorably  to  the  grantee  ( Winslow  v.  Patten,  34 
Maine  i?.,  25).  And  in  an  earlier  case,  before  the  same  court,  it 
appeared  that  the  grantee  of  land  was  bounded  "  on  the  sea." 
The  court  held  that,  under  the  deed,  the  grantee  owned  the  flats 
for  one  hundred  rods,  and  no  more,  from  high-water  mark,  if  they 
extended  so  far  {Partridyew  Luce,  ^Q  Maine  P.,  16).  And  in 
an  earlier  case,  before  the  same  court,  it  appeared  that  land  con- 
veyed was  described  as  one-half  of  a  particular  tract  of  land, 
"being  that  part  next  to  and  adjoining  a  particular"  river.  The 
court  held  that  the  grant  extended  to  the  river,  and  included  the 
flats,  notwithstanding  there  was  a  particular  description  in  the 
deed  by  which  the  land  was  "  bounded  round  by  the  shore,"  it 
being  understood  that  the  particular  description  was  used  by  way 
of  reiteration  and  affirmation  of  the  preceding  general  words,  and 
did  not,  therefore,  diminish  the  grant  made  by  the  general  words. 
(Moore  v.  Grijin,  22  Maine  P.,  350). 

But  the  question  as  to  what  boundary  will  include  the  adjoin 
ing  "  flats,"  has  arisen  more  frequently  in  the  State  of  Massachu- 
setts than  in  the  State  of  Maine,  although  the  ordinance  of  1647 
has  been  extended  to  the  latter  State,  notwithstanding  the  terri- 
tory now  constituting  the  State  of  Maine  was  not  under  the- juris- 
diction of  Massachusetts  when  it  was  made.  In  one  case  before- 
the  Supreme  Judicial  Court  of  Massachusetts,,  the  deed  bounded 
the  land  "  easterly  on  the  sea  or  flats."  The  court  held  that  the- 
grant  passed  the  flats  as  appurtenant  to  the  land  conveyed.  And 
the  court  declared  that,  in  construing  the  deed  thus  bounding  the 
land  intended  to  be  conveyed,  a  lease  for  years,  made  to  the 
grantee  by  a  former  proprietor,  and  continuing  at  tiie  date  of  tlno- 
29 


226  LAW   OF  BOUNDARIES. 

deed,  of  a  shop  standing  on  tlie  land  conveyed,  and  bounded 
"easterly  on  tlie  sea  or  flats  of  the  lessor,"  if  admissible  in  evi- 
dence, had  no  tendency  to  prove  that  the  flats  appurtenant  to  the 
upland  were  not  included  in  the  deed  {Saltonstali  v.  Long  Wharf, 
7  Gush.  R.,  195).  The  same  court,  in  a  much  later  case,  gave 
construction  to  the  deed  to  the  Hancock  Free  Bridge  Corporation, 
by  tlie  proprietors  of  the  West  Boston  bridge,  of  their  franchise, 
made  pursuant  to  statute.  The  deed,  in  terms,  included  "  all  their 
right,  title  and  interest  in  and  to  the  causeway,  from  the  westerly 
.abutment  of  said  bridge."  The  court  held  that  this  deed  con- 
veyed a  fee  in  the  flats  owned  by  the  grantors,  under  said  cause- 
way, and  under  "  Little  Bridge,"  a  part  thereof ;  and,  therefore, 
that  a  subsequent  deed  from  the  same  grantors  of  a  tract  of  land, 
adjoining  said  causeway  on  the  north,  by  metes  and  bounds, 
"  together  with  all  the  right,  title  and  interest  of  said  proprie- 
tors to  all  the  flats  adjoining,  not  previously  sold  and  conveyed," 
passed  no  title  to  the  flats  south  of  said  causeway  and  Little  Bridge 
\lIarloio  V.  Rogers,  12  Ctish.  R.,  291).  And  the  same  court 
decided  another  case  at  tlie  same  term,  involving  the  construction 
of  a  deed  wherein  the  land  intended  to  be  conveyed  was  described 
as  all  the  land  "  on  the  easterly  side  of  a  creek,  meaning  to  con- 
vey all  the  land  between  "  certain  other  specified  bounds  and  said 
creek.  The  court  held  that  the  deed  conveyed  the  flats  adjoining 
to  the  center  of  the  creek  {Tlarloio  v.  Fish,  12  Cush.  R.,  302). 

An  important  case  came  before  the  Supreme  Judicial  Court  of 
Massachusetts,  in  1867,  in  which  some  rules  were  laid  down  by  the 
court  for  dividing  flats  adjoining  the  sea  or  tide-water.  It 
appeared  that  upon  a  tide-water  cove,  in  which  the  legal  dividing 
lines  of  the  flats  were  at  right  angles  with  the  base  line  of  the 
cove,  three  lots  of  the  upland  were  conveyed  by  parallel  side  lines 
which  struck  the  shore  obliquely,  the  deed  of  each  lot  describing 
it'as  having  a  boundary  line  of  a  certain  number  of  feet  on  the 
shore,  together  with  flats  of  that  number  of  feet  in  width  to  low- 
water  mark.  The  side  lines,  if  extended  over  the  flats  at  right 
angles  with  the  base  line  of  the  cove,  would  give  substantially 
the  specified  width  of  flats;  but  if  extended  m  the  same  direc- 
tion as  the  side  lines  of  the  upland,  would  give  a  less  width,  and 
would,  by  means  of  intersecting  the  legal  boundary  of  the  flats 
belonging  to  a  neighboring  estate,  afford  to  one  of  the  lots 
;4?ranted  no  access  to  low-water.      The  court  held  that  the  side 


LAXDS    WITH   WATER   BOUXD ARIES.  227 

lines  of  the  flats  were  not  to  be  extended  in  the  same  direction  as 
those  of  the  uphmd.     And  the  foUowing  rnle  was   hiid  down : 
"Where  the  shore  line  of  a  tide-water  cove  does  not  depart  much 
from  a  straight  line,  the  flats   may  be  divided   by  drawing  a  base 
line    from  headband  to  headland,  and  running  straight   lines  at 
rio-ht  angles  with  the  base  line  from  the  ends  of  tlie  division  lines 
of  the  upland  to  low- water  mark,  even   if   the   sea  never  ebbs 
beyond  the  base  line,  provided  the  situation  and  shape  of  the 
channel  are  not  such  as  to  require  a  different   mode  of  division. 
Gray,  J.,  delivered  the  opinion  of  the  court,  and,  among  other 
things,  said  :  "  In  the  division  of  flats  between  the  proprietors 
of  lands  on  the  sea  shore  no  general  principle  is  better  established 
than  that  by  which  each  parcel  of  flats,  unless   affected  by  the 
peculiar  shape  of  the  shore  or  the  terms  of  particular  grants,  is  to 
extend  directly  towards  low-water  mark,  and  to  be  of  equal  width 
throughout.     In    Gray   v.    Deluce   (5    Cush.,    12),   Mr.    Justice 
AVilde,  speaking  for  the  whole  court,  declared  it  to  be  a  general 
rule,  which  was  intended,  though  not  expressly  stated,  by  the  colo- 
nial ordinance  of  1647,  '  that  in  all  cases,  when  practicable,  every 
proprietor  is  entitled  to  the  flats  in  front  of  his  upland  of  the  same 
width  at  low-water   mark   as   tliey  are   at   high-water   mark,'  or 
(which  is  precisely  equivalent)  'of  equal  width  with  his  lot  at 
high-water  mark.'     And  in  Porter  v.  Sullivan  (7   Gray,  443), 
Chief  Justice  Shaw  said  that  the  flats  of  each  proprietor  '  must  be 
in  front  of  the  land,  that  is,  directly  to  the  sea  from  which  the 
tide  flows,  by  lines  as  nearly  as  practicable  perpendicular  to  the 
line  shore,  or  the  line  of  ordinary  high-water  mark.'     *     *     * 
Although  the  proprietor  of  land  bounding  on  the  sea-shore  may 
sell  it  with  or  without  the  adjoining  flats,  or  with  such  portion  as 
he  pleases  of  the  flats  which  he  owns,  the  presumption  is  that  any 
deed  of  a  lot  of  land  with  the  flats  adjoining  is  intended  to  pass 
the  grantor's  actual  right  and  legal  title  in  the  flats  appurtenant 
to  or  parcel  of  the  lot  granted  ;  and  it  is  well  settled  that  the  side 
lines  of  the  upland  have  no  influence  in  deciding  the  direction  of 
the  dividing  lines  of  the  flats,  unless  referred  to  as  guides  in  par- 
ticular grants "  {Stone  v.  Boston  Steel  and  Iron  Comjpany,  14 
Allen's  IL,  230,  233,  234). 

A  very  learned  and  elaborate  note  is  appended  to  the  report  of 
a  case  decided  by  the  Supreme  Judicial  Court  of  Massachusetts 
in  1857,  a  liberal  extract  from  which  is  quite  pertinent  to  .the  sub 


228  LAW  OF  BOUNDARIES. 

ject  now  under  consideration.  The  learned  reporter  sajs:  "  The 
general  rules  for  the  division  of  flats  among  coterminous  proprie- 
tors, so  far  as  they  can  be  astertained  from  the  adjudged  cases, 
may  be  thus  stated  : 

"  1st.  The  intention  of  the  ordinance  was,  'if  practicable,  to  give 
every  proprietor  the  flats  in  front  of  his  upland,  of  eqnal  width 
with  his  lot  at  low-water  mark'  (Wilde,  J.,  in  Gray  v.  Deluce,  5 
Cash.,  12  ;  and  see  Deerfield  v.  Avies,  17  Fkk.,  45).  Whether 
the  proprietor  of  upland,  even  if  bounding  on  a  cove,  can  claim 
flats  in  any  other  direction  than  toward  low-water  mark  has  not 
been  adjudged.  The  late  Chief  Justice  Shaw  and  Samuel  Hoar, 
sitting  as  referees,  awarded  that  he  could ;  Cliief  Justice  Parker 
and  ilr.  Justice  Wilde  were  of  opinion  he  could  not  {clones  v. 
Boston  Mill  Coiyoration,  6  Pick.,  151,  156;  Rust  v.  Boston 
Hill  Cor2?oration,  6  Pick,  161,  167;  and  see  Thornton  v.  Foss, 
26  Maine,  405). 

"  2d.  The  nearest  channel  from  which  the  tide  never  ebbs,  though 
not  adapted  to  navigation,  is  the  limit  {Sjjarhawk  v.  Bullard,  1 
3fet.,  107  ;  Ashhy  v.  Eastern  Railroad,  5  Met.,  370  ;  Walker  v. 
Boston  and  Maine  Railroad,  3  Cush.,  22,  24 ;  Attorney-General 
V.  Boston  Wharf,  12  Gray,  27). 

"  3d.  The  direction  of  the  side  lines  of  the  flats  is  not  governed 
by  that  of  the  side  lines  of  tlie  upland  {Rust  v.  Boston  Mill  Go?'- 
poration,  6  Pick.,  169  ;  Pij)er  v.  Richardson,  9  Met.,  158 ;  C^lr- 
tis  V.  Francis,  9  Cush.,  438,  442 ;  Emerson  v.  Taylor,  9  Greenl., 
43),  unless  expressly  so  agreed  by  the  parties  {Dawes  v.  Pren- 
tice, 16  Pick.,  442). 

"  4th.  Where  there  is  no  cove  or  headland,  a  straight  line  is  to 
be  drawn  according  to  the  general  course  of  the  shore  at  liigli- 
water,  and  the  side  lines  of  the  lots  extended  at  right  angles  with 
the  shore  line  {Sparhawk  v.  Bullard,  1  Met.,  106  ;  Porter  v.  S\d- 
livan,  7  Gray,  443  ;  Deerfield  v.  Ames,  17  Pick.,  45,  46  ;  Knight 
V.  Wilder,  2  Cush.,  210). 

"5th.  Around  a  headland,  the  lines  dividing  the  flats  must 
diverge  towards  low-water  mark  (Wilde,  J.,  in  Gray  v.  Deluce,  5 
Ctish.,  12,  13;  Shaw,  Ch.  J.,m  Porter  v.  Sullivan,  7  6^my,  443; 
Emerson  v.  Taylor,  9  Greenl.,  46). 

"  6th,  In  a  shallow  cove,  in  which  there  is  nr  channel,  a  base  line 
may  be  run  across  the  mouth  of  the  cove,  and  parallel  lines  drawn, 
at  riffht  andes  with  the  base  line,  from  the  ends   of  the  division 


■LAXDS    WITH   WATEE  BOUKDAEIES.  229 

lines  of  the  upland  to  low-water  mark  {Gray  v,  Deluce,  5  Cusli., 
12,  13;  see  Attorney- General  v.  Boston  WJuwf,  12  Gray,  251). 

'*  Tth.  A  deep  cove,  out  of  wliicli  the  tide  entirely  ebbs  at  low- 
water,  is  to  be  divided  by  drawin<;  a  line  across  its  mouth,  giving 
to  each  proprietor  a  width  upon  the  base  line  proportional  to  the 
width  of  his  shore  line,  and  then  drawing  straight  converging 
lines  from  the  divisions  at  the  shore  to  the  corresponding  points 
on  the  base  line.  This  rule  (which  is  substantially  that  suggested 
by  the  magistrates  in  1683,  ante  521),  was  hrst  reviewed  by  Wilde, 
J.,  in  the  hypothetical  case  of  a  cove  the  circumference  of  which 
was  twice  its  diameter,  or  deeper  than  a  semi-circle  {Rust  v.  Bos- 
ton Jim  Corporation,  6  Pick.,  107,  108).  It  has  since  been  acted 
upon  in  other  cjises,  the  reports  of  which  contain  no  plan  or 
description  of  the  properties  of  the  cases  in  question  {Sjxirhawk 
V.  Billiard,  1  Met.,  107;  ^Ylleeler  v.  Stone,  1  Gush.,  323 ;  and  see 
Ashhy  V.  Eastern  Railroad,  5  Met.,  369,  370  ;  Deerfield  v.  Ames, 
17  Pick.,  45^  46). 

"  8th.  The  direction  of  the  side  lines  of  flats  in  a  cove  may  be 
modified  by  the  course  of  the  channel  bounding  them,  or  by  the 
position  of  other  channels  between  part  of  that  channel  and  the 
upland  (  Walker  v.  Boston  and  Maine  Railroad,  3  Gush.,  22-24 ; 
Commonwealth  v.  Alger,  7  ih.,  69 ;  Porter  v.  Sullivan,  7  Gray, 
448,  449 ;  Attorney-General  v.  BostonWhai'f,  12  ih.,  251). 

"  9th.  It  seems  that,  after  passing  the  mouth  or  narrowest  part  of 
a  cove,  the  lines  may  diverge,  if  necessary  to  preserve  the  pro- 
portions of  different  estates  (  Walker  v.  Boston  and  Maine  Rail- 
road, 3  Gush.,  25). 

"  10th.  An  agreement  of  coterminous  proprietors,  as  to  the  direc- 
tion of  their  boundaries,  may  be  proved  or  presumed  from  their 
acts  and  those  of  public  authorities  {Sparhaick  v.  Bidlard,  1  3Iet., 
95 ;  Curtis  v.  Francis,  9  Cash.,  442,  400,  403,  400 ;  Adams  v. 
Boston  Wharf,  10  Gray,  294 ;  Attorney- General  v.  Boston  Wharf, 
12  ih.,  251 ;  Rider  v.  Thompson,  23  Maine,  243;  Treat  v.  Chip- 
man,  35  ih.,  34).  Thus  the  lines  of  the  flats  at  the  foot  of  Sum- 
mer street  in  Boston  have  been  repeatedly  found  by  juries,  under 
the  instructions  and  with  the  approval  of  the  court,  to  be  parallel 
with  the  line  of  that  street,  as  established  by  the  select  men  about 
1003  (  Valentine  v.  Piper,  22  I'ick.,  95,  90  ;  l*iper  v.  Richardson, 
9  Met,  103 ;  Brake  v.  Curtis,  9  Cash.,  447,  note).  In  the  large 
cove  to  the  northward    of  that  street  the  flats  were  distributed, 


230  LAW  OF  BOUNDARIES. 

according  to  an  agreement  made  1673,  for  the  erection  of  a  barri- 
cade ao-ainst  the  Dutch  ;  but  tlie  legal  effect  of  that  ao-reeraent 
has  been  judicially  ascertained  {B/'ijmner  v.  Zo7ig  Wharf,  5  Pick.^ 
135,  138;  WJieeler  v.  Stone^  1  Cush.,  319,  320;  Commonwealth  v. 
Alger,  7  Cush.,  73;  Colony  law  ^1681,  5  Mass.  Col.  Bee,  310, 
311 ;  Bowditch  on  Flats,  4). 

"  The  ordinance  of  161:7  has  been  extended  by  usage  to  Plymouth, 
to  Nantucket  and  Dukes  county,  and  to  Maine,  although  none  of 
those  were  nnder  the  jurisdiction  of  Massachusetts  when  it  was 
made  {Sullivan  on  Land  Titles,  285 ;  Barker  v.  Bates,  13  Pick., 
258,  260 ;  Mayhew  v.  Norton,  17  ih.,  357  ;  Storer  v.  Freeman,  6 
Mass.,  435 ;  2  Dmie  Ah.,  701 ;  Codman  v.  Winslow,  10  Mass., 
11:6 ;  Lapish  v.  Bangor  Bank,  8  Greenl.,  89,  93 ;  ^Veston  v,  Sam,]?- 
son,  8  Cash.,  354 ;  Comnnonwealth  v.  Alger,  7  ib.,  76  ;  Moulton  v. 
LiUy,  37  J/a?7ie,  435). 

"The  rule  which  has  been  adopted  in  Maine  for  the  division  of 
flats  among  coterminous  proprietors,  in  the  absence  of  any  agree- 
ment between  them,  or  any  adverse  possession,  is  to  draw  a  base 
line  between  the  two  corners  of  each  lot  at  the  shore,  and  then 
run  a  line  from  each  corner,  at  right  angles  with  the  base  line,  to 
low-water  mark  ;  and,  if  the  side  lines  diverge  from  or  conflict 
with  each  other,  to  divide  equally  between  the  two  proprietors 
the  land  excluded  or  included  by  both  lines ;  and  not  to  allow  any 
subdivision  of  lots  to  change  the  side  lines,  as  required  by  an 
earlier  division  of  the  npland.  How  this  rule  should  be  applied 
in  a  cove  so  deep  as  to  bring  more  than  two  of  such  side  lines  into 
conflict  with  each  other  has  never  been  decided  {Emerson  v.  Tay- 
lor, 9  Greenl.,  42  ;  Kennebec  Ferry  v.  Bradstreet,  28  Maine,  374 ; 
Treat  v.  Chipman,  35  ib.,  36;  Call  v.  Lowell,  40  ih.,  31), 

"Seisin  of  flats  follows  the  legal  title,  nnlessan  exclusive  posses- 
sion is  proved  {Codman  v.  Winslow,  10  Mass.,  151 ;  Brimmer  v. 
Long  Wharf,  5  Pick.,  135 ;  Rust  v.  Boston  Mill  Corporation,  6 
itb.,  171 ;  Wheeler  v.  Stone,  1  Cush.,  317).  Disseisin  of  flats  may 
be  effected  by  filling  them  np,  or  by  building  a  wharf  on  them 
and  laying  vessels  at  the  end  of  it  {Rust  v.  Boston  Mill  Corpora- 
tion,^ Pidi.,  158;  Wheeler  N.Stone,\  (7m5A.,  315,  322);  and  see 
Treat  v.  Clnpnian  (35  Maine,  34).  But  such  nse  of  flats  adjoin- 
ing a  wharf  does  not  necessarily  exclude  their  use  by  othei's 
Gray  v.  Bartlett,  20  Pick.,  192 ;  Peering  v.  Long  Wharf,  25 
Maine,  65).     Sailing  over  uninclosed  flats,  when  covered  with  the 


LANDS    WITH   WATER  BOUNDARIES.  231 

tide,  will  not  constitute  disseisin  {Brimmer  v.  Long  Wliarf,  5 
Plck.^  139;  Drake  v.  Curtis^  1  Cash.,  415-419;  Curtis  v.  Fran- 
cis^ 9  i/^.,  466),  nor  will  occasionally  cnttino;  o;rass  on  them  {Com- 
ononwealth  v,  Roxbury^  ante,  499 ;  Thoniton  v.  T'oi'^,  20  Maine, 
404) ;  yet  see  Glansey  v.  Houdlitte  (39  Maine,  457). 

"  Since  the  passage  of  the  ordinance  a  grant  of  land  bounding  on 
tlie  sea-shore  carries  the  Hats,  in  the  absence  of  excluding  M'ords 
(2  Dane  Ah.,  691,  699 ;  Valentine  v.  Piper,  22  Pick.,  44 ;  Drake 
V.  Curtis,  1  Cush.,  413).  But  the  owner  may  sell  flats  or  upland 
separately  (2  Dane  Ah.,  699,  701 ;  Storer  v.  Freeman,  6  Mass., 
439;  Mayhew  v.  Marion,  17  Pick.,  357;  Commonwealth  v.  Alyer, 
7  Cush.,  80 ;  Porter  v.  Sullivan,  7  Gray,  445,  447 ;  Lapish  v. 
Bangor  Bank,  8  Grecnl.,  91;  Deering  v.  Zw?^  TF>^a?y,  25  Maine, 
64).  Flats  may  pass  as  appurtenances  of  a  wharf  or  a  messuage 
(2  Z>«;i€  J.Z>.,  690,  700,  701;  Doane  v.  Broad  Street  Associution, 
(3  Mass.,  333,  334;  Ashley  v.  Eastern  Railroad,  5  J/<?^.,  369; 
Jackson  v.  Boston  and  Worcester  Railroad,  1  Cash.,  580;  t'o^n- 
nwnwealth  v.  Alger,  7  ih.,  80).  Doubtful  words  are  to  be  taken 
most  strongly  against  a  private  grantor  {Adams  v.  Frothingham, 
3  Mass.,  361 ;  Saltonstall  v.  Long  Wharf,  7  Cush.,  201 ;  Winslow 
V.  Patton,  34  Maine,  25).  Otherwise  in  public  grants  {Common- 
wealth V.  Roxbury,  ante,  490). 

"  The  general  principle  is,  that  a  boundary  by  the  tide-water 
passes  the  flats,  but  a  boundary  by  the  land  under  the  water 
excludes  them.  Thus  flats  are  included  in  a  grant  bounded  '  by 
the  harbor '  {Mayhew  v.  Norton,  17  Pick.,  359) ;  '  by  the  sea  or  salt- 
M-ater'  {Gunn  v.  Chelsea,  24  Pick.,  77);  'by  the  sea'  {Jackson  v. 
Boston  and  Worcester  Railroad,  1  Cush.,  478 ;  Saltonstall  v. 
Zor^j/  Wharf,  7  Cush.,  200) ;  '  by  the  creek '  {Harlow  v.  Fisk,  12 
Cush.,  302) ;  '  on  the  stream  '  {Lapish  v.  Bangor  Bank,  8  Greenl., 
92,  93) ;  or  '  river'  {Moore  v.  Griffin,  22  il/ai??^,  350) ;  or  '  bay  ' 
{Patridge  v.  Zwf^,  36  Maine,  19).  On  the  other  hand,  '  by  the 
shore'  {Stoi'er  v.  Furnian,  6  Mass.,  439);  or  '  beach' (iV/7t^5  v. 
Patch,  13  Gray.,  257);  or  'flats'  (Parsons,  Ch.  J.,  m  Storer  v. 
Fnrman,  6  Mass.,  439 ;  Fletcher,  J.,  t/t  Saltonstall  v.  Zo;<^ 
ir/ta/y,  7  Cush.,  200),  excludes  the  flats.  See  also  Dunlop  v. 
Stetson  (4  Mason,  366) ;  Lapish  v.  Bangor  Bank  (8  Greenl.,  90). 
But  the  effect  of  such  general  words  may  be  controlled  by  specific 
monuments  or  abuttals  {Storer  v.  Furnian,  6  Mass.,  440,  441 ; 
Chapman  v.  Edmonds,   3  Allen,  514).     Yet  a   specific   abuttal 


232  i.-lTl'   OF  BOUXDARIES. 

must  yield,  if  contrary  to  the  intention  apparent  upon  tlie  whole 
deed  {Jackson  v.  Boston  and  Worcester  Railroad,  1  Cush.,  579). 
A  boundary  'by  away'  {Codman  v.  ^Yinslo1i\  10  J/ass.,  149) ; 
'by  the  marsh'  {Rust  v.  Boston  Mill  Corj)oration,  G  Pick,,  1G6) ; 
or  '  by  a  cliff'  {Baker  v.  Bates,  13  Pick.,  256,  261),  excludes  the 
flats  beyond.  A  private  grant,  'on  the  sea  or  flats,' or  'by  the 
sea  or  beach,'  being  ambiguous,  passes  the  flats  {Saltonstall  v. 
Long  Wharf,  7  Cush.,  195;  Doane  v.  Willcutt,  5  Gray,  335). 
'Harbor  '  or  'flats'  is  a  monument,  which  governs  course  and  dis- 
tances (J/ay/if^iy  v.  iYor^f???,  IT  P/c'A".,  359 ;  Curtis  v.  Francis,^ 
Cush.,  435-44:0,  465  ;  and  see  Brimmer  v.  Long  Wharf,  5  Pick., 
135,  139).  The  court  will  take  into  consideration  the  situation  of 
the  parties,  the  state  of  the  country,  ai)d  of  the  thing  granted,  at 
the  time,  in  order  to  ascertain  the  intent  of  the  parties  {Adams  v. 
Frothinghain,  3  Mass.,  352 ;  Commonwealth  v.  Roxbury,  9  Gray, 
493  ;  Rider  v.  Thompson,  23  Maine,  244).  A  proprietary  grant 
in  1680  of  '  a  piece  of  land  below  high-water  mark,  to  set  a  thop 
upon,  not  exceeding  forty  feet  in  M'idth,'  extended  to  low-water 
mark,  if  within  the  hundred  rods  {Adams  v.  Frothingham,  3  Mass., 
352).  But  a  grant  of  '  a  thatch  bank  '  below  high-water  mark 
does  not  pass  the  flats  towards  low-water  mark  upon  which  no 
thatch  grows  {Lufkin  v.  Haskell,  3  Pick.,  359).  A  description 
of  flats  as  bounded  on  one  side  upon  a  way  estops  the  grantor  to 
deny  that  there  is  such  a  way,  but  is  not  a  covenant  against  the 
actsoftliird  persons.  L^arker  v.  Srnith,17  Mass.,  4:13  ;  Hovje  v. 
Alger,  4  Allen,  206"  {Commonwealth  v.  City  of  Roxbury,  9  Grafs 
R.,  521-525,  note). 

The  cases  noted  from  the  9th  (iray  arose  principally  under  a 
local  ordinance,  and  yet  they  decide  principles  which  may  be  uni- 
versal in  their  application,  and  they  may  serve  as  precedents,  or 
illustrations  of  many  cases  in  general  practice.  It  will  be  observed 
that  in  the  cases  where  the  conveyance  is  held  to  carry  the  title  of 
the  grantee  of  an  object,  as  to  the  center  of  a  stream,  or  highway, 
a  ditch,  a  wall,  and  the  like,  the  object  named  for  the  boundary  is 
mutually  beneficial  to  the  owners  on  both  sides.  For  example, 
the  highway  is  for  the  purpose  of  travel  upon,  the  ditch  for  drain- 
age, and  the  wall  for  a  division  fence,  all  for  the  benefit  of  both 
parties.  This  may  be  regarded  as  one,  though  not  the  only,  reason 
for  the  rule  adopted  in  such  cases. 


BOUNDARIES   OF  STATES   AXD    THE  LIKE.  233 

CHAPTER  XIX. 

THE  RULES  IN  RESPECT   TO   BOUNDARIES    OF   STATES  AND   TERRITORIES, 

COUNTIES  AND  TOWNS SOME    ADJUDICATED  CASES  REFERRED  TO 

JURISDICTION  IN  SUCH  CASES. 

As  a  general  proposition,  the  boundaries  of  all  States  and  terri- 
tories are  defined  by  the  act  or  edict  of  the  sovereign  power  by 
which  they  are  ceded  or  set  off,  or  by  compact  between  the  States 
after  becoming  independent  political  powers;  the  boundaries  of 
counties  by  tlie  Constitution  or  Legislature  of  the  State  in  which 
they  are  located  ;  and  the  boundaries  of  towns  are  settled  by  the 
act  of  the  Legislature  setting  them  off.  In  cases  of  dispute,  there- 
fore, reference  must  always  be  had  to  the  act  or  compact  by  which 
the  boundary  is  established.  Some  rules,  however,  are  recognized 
upon  the  subject,  wliich  are  general  in  their  character,  and  which 
may  aid  in  determining  the  question  in  such  cases. 

I.  It  is  a  part  of  the  general  right  of  sovereignty,  belonging  to 
independent  nations,  to  establish  and  fix  the  disputed  boundaries 
between  their  respective  territories;  and  the  boundaries,  so  estab- 
lished and  fixed  by  compact  between  nations,  become  conclusive 
upon  all  the  subjects  and  citizens  thereof,  and  bound  their  rights, 
and  are  to  be  treated,  to  all  intents  and  purposes,  as  the  true  and 
real  boundaries.  This»is  a  doctrine  universally  recognized  in  the 
law  and  practice  of  nations  ;  and  it  has  been  declared,  by  the 
higliest  judicial  authority  of  this  country,  that  the  right  referred 
to  belongs  equally  to  the  States  of  the  federal  union,  with  the 
exception  or  limitation  provided  by  the  Constitution,  that  the  right 
be  exercised  with  the  consent  of  Congress.  The  Constitution 
declares  that  "  no  State  shall,  without  the  consent  of  Congress, 
enter  into  any  agreement  or  compact  with  another  State ;  "  plainly 
admitting  that,  with  such  consent,  the  right  may  be  exercised. 
This  doctrine  Avas  recognized  by  the  Supreme  Court  of  the  United 
States  in  an  early  case,  which  came  before  it  on  error  to  the  Cir- 
cuit Court  of  the  United  States  for  the  district  of  West  Tennes- 
see. It  a]>peared  tluit  the  plaintiffs  in  the  Circuit  Court  instituted 
an  ejectment  for  a  tract  of  land  hekl  under  a  Virginia  military 
land  Avarrant,  situate  south  of  a  line  called  Mathews'  line,  and 
south  of  Walker's  line;  the  latter  being  the  establislied  boundary 
between  the  States  of  Kentucky  and  Tennessee,  as  fixed  by  a  com- 
30 


234  i^TF  OF  BOUNDARIES. 

pact  between  these  States,  made  in  1820.  Bj  the  compact  referred 
to,  the  jurisdiction  over  the  territory  to  the  south  of  Walker's  line 
was  acknowledged  to  belong  to  Tennessee,  but  the  titles  to  lauds 
held  under  Yirginia  military  land  warrants,  and  grants  from  Ken- 
tucky, as  far  south  as  "  Mathews'  line,"  were  declared  to  be  con- 
firmed ;  the  State  of  Kentucky  having,  before  the  compact, 
claimed  the  right  to  the  soil  as  well  as  the  jurisdiction  over  the 
territory,  and  having  granted  lands  in  the  same.  The  compact  of 
1820  was  confirmed  by  Congress.  The  defendants  in  the  eject- 
ment claimed  the  lands  under  titles  emanating  from  the  State  of 
IsTorth  Carolina  in  1786,  1T94,  1795,  before  the  formation  of  the 
State  of  Tennessee,  and  grants  from  the  State  of  Tennessee  in 
1809,  ISll,  1812,  ISI-I,  in  which  the  lands  claimed  by  the  defend- 
ants were  situated,  according  to  the  boundary  of  the  State  of 
Tennessee,  declared  and  established  at  the  time  the  State  of  Ten- 
nessee became  one  of  the  States  of  the  United  States.  The  Cir- 
cuit Court  instructed  the  jury  that  the  State  of  Tennessee,  by 
sanctioning  the  compact  admitted,  in  the  most  solemn  form,  that 
the  lands  in  dispute  were  not  within  her  jurisdiction,  nor  within 
the  jurisdiction  of  North  Corolina,  at  the  time  they  were  granted, 
and  that  consequently  the  titles  were  subject  to  the  compact.  The 
Supreme  Court  held  that  the  instructions  were  entirely  correct. 
The  decision  of  the  court  was  based  upon  the  grounds  and  princi- 
ples before  stated,  but  there  were  other  ingredients  in  the  case 
which  were  thought  to  be  equally  decisive  of  the  merits  ;  but  the 
court  declared  that  it  was  not  necessary  to  put  their  decision  upon 
that  ground,  and  enunciated  distinctly  the  doctrine  laid  down  in 
this  point  {Poole  v.  Fleeger,  11  Peters'  P.,  185,  209.) 

II.  Where  the  boundary  between  two  States  or  two  nations  is 
a  river,  the  presumption  is  that  the  dominion  of  each  extends  to 
the  middle  of  the  stream  (  YatteVs  Law  of  Nations,  120).  And 
the  same,  doubtless,  is  the  rule  where  the  boundary  is  a  lake  or 
large  fresh-water  body,  like  the  great  chain  of  lakes  between  the 
middle  States  and  British  America,  and  Lake  Michigan,  between 
the  States  of  Michigan  and  Illinois  and  Wisconsin.  The  presumj)- 
tion  in  these  cases  is  that  the  boundary  of  the  State  or  Territory 
is  along  the  middle  of  the  river  or  other  body  of  fresh-water; 
while,  in  the  case  of  boundary  upon  the  ocean,  the  line  is  at  high- 
water  mark. 

III.  The  courts  will  take  judicial  notice  of  the  boundaries  of  a 


BOUJS'DARIES   OF  STATES  AXD    THE  LIKE.  2S5 

State,  and  of  the  local  divisions  of  a  State  into  counties,  cities  and 
towns  ;  that  is  to  say,  the  acts  or  statutes  defining  the  boundaries 
of  States,  counties,  cities  and  towns  are  cjeuerally  regarded  as 
public  acts,  and  courts  are  bound  to  take  notice  of  them  judicially. 
The  English  Court  of  King's  Bench,  some  fifty  years  ago,  decided 
that  the  court  would  take  judicial  notice  of  the  general  division  of 
the  kingdom  into  counties,  because  they  are  continually  in  the 
habit  of  directing  their  process  to  the  sheriffs  of  the  counties  ;  and 
because  the  counties  are  mentioned  in  a  great  variety  of  acts  of 
Parliament.  But  it  was  declared  that  the  court  would  nut  apply 
the  rule  with  respect  to  the  local  situation  of  the  different  places 
in  each  county,  or  with  respect  to  the  boundaries  of  counties  or 
the  distances  of  one  county  from  anotlier.  Bayle}^,  J.,  in  his 
opinion,  said :  "  I  have  before  said  that  this  court  will  take  judi- 
cial notice  of  the  general  division  of  counties;  but  that  cannot  be 
extended  to  the  particular  parts  of  counties  and  their  local  situa- 
tion. We  know  very  well  that  there  are  man}'  parts  of  counties 
separated  from  the  general  body  of  the  county.  There  is  a  part 
of  the  county  of  Durham  which  is  situated  to  the  north  of  Nor- 
thumberland ;  and  so  the  parish  of  Crayke,  belonging  to  the  same 
county,  is  surrounded  by  the  North  Biding  of  Yorkshire ;  and 
there  are  many  other  parts  of  other  counties  similarly  situated." 

Holroyd,  J.,  said :  "lam  of  the  same  opinion.  The  present 
objection  will  be  valid,  unless  the  court  are  bound  by  law  to  take 
judicial  notice,  not  only  of  every  county,  but  of  the  local  situation 
of  every  place  in  any  county  ;  and  I  think  that  they  are  not 
bound  so  to  do.  I  agree  that  this  allegation,  taken  altogether, 
must  be  taken  as  a  positive  allegation  that  the  vessel  was  found 
•within  eight  leagues  of  a  part  of  the  county  of  Suffolk.  For, 
though  part  of  this  allegation  is  under  a  videlicit,  it  is,  neverthe- 
less, sufficiently  certain.  But  assuming  that  to  be  so,  still  the 
court  cannot  take  judicial  notice  of  the  local  situation  of  Oxford- 
ness." 

Best,  J.,  observed :  "  It  ought  to  be  quite  clear,  in  a  case  like 
the  present,  that  a  party  detaining  a  prisoner  has  authority  by  law 
60  to  do.  It  ought,  therefore,  to  appear,  on  the  face  of  the  return, 
that  the  case  is  brought  accurately  within  the  provisions  of  the  act 
of  Parliament ;  now  that  has  not  l)cen  done  here.  We  ouglit,  it 
is  true,  to  take  judicial  notice  of  the  counties  of  England,  and  of 
those  which  are  maritime  counties,  as  being  noticed  in  a  varietj 


236  i.4Tr  OF  BOUyDARIES. 

of  acts  of  Parliament.  But  we  cannot  do  this  with  respect  eitlier 
to  the  local  situation  of  the  different  places  in  each  county,  nor  of 
the  distances  of  one  county  from  another.  It  seems  to  me,  there- 
fore, that  we  cannot  take  notice,  judicially,  either  that  Oxford- 
ness  may  not  be  an  isolated  part  of  the  county  of  Suffolk ;  or,  even 
if  it  be  part  of  the  body  of  that  county,  that  it  is  not  within  eight 
leagues  of  Beachy  Head"  {DeybeVs  Case,  4  Barn.  &  Aid.  R.y 
243,  246-248). 

But,  as  a  general  rule,  the  courts  in  this  country  take  judicial 
notice  of  the  boundaries  of  States,  cities  and  towns.  The  Supreme 
Court  of  Illinois,  at  an  early  day  in  the  history  of  the  State,  held 
that  statutes  defining  the  boundaries  of  counties  are  public  acts, 
and  that  courts  were  bound  to  take  notice  of  them  judicially  {Hoss 
V.  lieddicTt,  1  Scammon'' s  R.,  73).  And  the  Supreme  Court  of 
Delaware  held,  in  one  case,  that  the  courts  there  will  judicially 
take  notice  that  Camden  is  in  Kent  county  {T?ie  State  v.  Tootle,  2 
HarringtorC s  R.,  541). 

The  Supreme  Court  of  the  State  of  Hhode  Island,  not  long  since, 
held  that  courts  are  bound  to  take  cognizance  of  the  boundaries  in 
fact  claimed  by  the  State,  and  should  exercise  jurisdiction  accord- 
ingly. But  it  was  declared  that  where  the  boundary  line  of  the 
State  is,  dejure,  is  a  political  question  with  which  the  courts  will 
not  intermeddle  {The  State  v.  Dunwell,  3  R.  I.  R.,  127). 

The  old  Supreme  Court  of  the  State  of  Xew  York  has  several 
times  held  that  courts  will  take  notice  of  the  civil  divisions 
of  the  State,  and  the  counties  iu  which  the  several  towns  are 
located  ( The  PeopU  v.  Bruse,  7  Cow.  R.,  429 ;  Vanderwerlcer  v. 
The  People,  5  Wend.  R.,  530 ;  Chapman  v.  Wither,  6  IliWs  R., 
475);  while  the  Supreme  Court  of  Maine  has  held  that  courts 
take  notice  of  the  local  divisions  of  the  State  into  counties,  cities 
and  towns,  but  that  they  are  not  bound  to  take  judicial  notice  of 
the  local  situation  and  distances  of  places  in  counties  from  each 
other  {Goodwin  v.  Appleton,  9  Shep.  R.,  453).  And  the  Supreme 
Court  of  Ohio  has  held  that  the  subdivisions  of  the  refugee  frac- 
tional township  in  that  State  will  not  be  judicially  noticed,  and 
that  they  must,  therefore,  be  set  up  and  proved  {Stanlerry  v. 
Nelson,  WriyhCs  R.,  766).  But  this  is  really  a  rule  of  evidence, 
and,  perhaps,  may  be  more  appropriately  considered  in  another 
place. 

In  respect   to  the  boundary  lines  of  some  of  the  States,   the 


BOUNDARIES   OF  STATES  AND    THE  LIKE.  237 

Supreme  Court  of  Illinois  has  recently  held  that  as  much  of  Lake 
Michigan  as  is  included  by  a  line  riinniiiig  north  from  the  point 
where  the  eastern  boundary  of  Illinois  strikes  the  southern  bend 
of  the  lake  to  a  point  in  the  middle  of  the  lake,  in  north  latitude 
42  degrees  and  30  minutes,  and  thence  west  along  that  parallel, 
is  undeniably  within  the  limits  of  Illinois;  and  it  was  observed  by 
the  court  that  it  was  true  that  no  portion  of  that  body  of  water  had 
been  assigned  to  the  counties  bordering  upon  it,  or  received  in 
any  manner  the  attention  of  the  Legislature,  yet  it  is,  neverthe- 
less, a  portion  of  the  navigable  waters  of  the  State  and  of  her  ter- 
ritory. Breese,  Ch,  J.,  delivered  the  opinion  of  the  court,  and, 
upon  this  subject,  said  :  "  The  counsel  for  the  appellant  are  surely 
mistaken  when  they  say  this  State  has  no  other  waters  naturally 
navigable  within  its  territory,  except  rivers.  By  the  act  of  Con- 
gress, prescribing  the  boundaries  of  this  State,  and  by  the  Consti- 
tution of  the  State,  conformable  thereto,  it  will  be  perceived  no 
inconsiderable  portion  of  Lake  Michigan  is  within  our  territorial 
limits.  The  maps  do  not  show  it ;  yet  the  fact  is,  nevertheless,  so, 
that  so  much  of  the  lake  as  is  inclosed  by  lines,  on  running  north 
from  the  point  where  our  own  eastern  boundary  strikes  the  south- 
ern bend  of  the  lake  to  a  point  in  the  middle  of  the  lake,  in  north 
latitude  42  degrees  20  minutes,  and  thence  west  along  that  par- 
allel, is  undeniably  within  our  limits.  It  is  true,  no  portion  of 
this  vast  body  of  water  has  been  assigned  to  the  counties  bordering 
upon  it,  or  received  in  any  manner  the  attention  of  the  Legisla- 
ture. Yet  it  is,  nevertheless,  a  portion  of  the  navigable  waters  of 
this  State  and  of  our  territory."  {The  J^orioay  v.  Jensen,  52  111. 
B.,  373,  380). 

The  Circuit  Court  of  the  United  States  for  the  district  of  Maine 
decided,  in  1822,  that  the  true  line  of  territorial  boundary  between 
the  United  States  and  the  English  territories,  on  the  bay  and 
waters  of  the  Passamaquaddy,  is  the  middle  of  the  stream,  or 
channel  of  the  river,  between  the  territories  of  the  nation,  calcu- 
lating from  low-water  mark.  And  it  was  held  that  a  different 
line  agreed  on  by  the  collectors  ot  revenue  could  not  be  regarded 
as  of  any  validity.  And  the  doctrine  was  laid  down  that,  where 
there  is  no  exclusive  occupancy  of  a  river  or  bay,  the  law  of 
nations  gives  to  the  nation  inhabiting  each  side  the  right  to  go  to 
the  middle  of  the  stream,  calculated  from  low-water  mark,  as  the 
limit  of  its  territorial  boundary  {The  Fame,  3  Mason's  li.,  147). 


238  i.4ir  OF  BOirXDARIES. 

The  Sapretue  Court  of  the  United  States,  in  the  year  1851, 
decided  tliat,  where  one  sovereign  State  nialves  a  cession  of  land 
to  another,  bonnding  the  grant  by  a  river,  and  describing  the  line 
not  only  as  commencing  on  the  bank,  but  also  as  running  up  the 
river  and  along  the  bank  thereof,  the  latter  words,  "  along  the 
bank,"  exclude  the  intendment  that  would  otherwise  prevail,  that 
the  line  should  run  along  the  thread  of  the  stream.  And  it  was 
declared  that  the  limit,  on  and  along  the  bank  of  the  river,  must 
be  where  the  bank  and  the  water  meet  in  its  bed  within  the 
natural  channel  or  passage  of  the  river.  And  it  was  further 
decided  that  the  words  in  such  grant,  "  along  the  bank  thereof," 
was  the  controlling  call  in  the  interpretation  of  the  cession ;  that 
it  excluded  tlie  idea  that  a  line  was  to  be  traced  at  the  edge  of  the 
water,  as  that  might  be  at  one  or  another  time,  or  at  low- water 
or  the  lowest  low-water ;  that  water  was  not  a  call  in  the  descrip- 
tion of  the  boundary,  though  the  river  was ;  and  that  these  did 
not  mean  water  alone,  but  banks,  shores,  water  and  the  bed  of  the 
river ;  that  if  water,  as  one  of  the  river's  parts,  had  been  meant,  it 
would  have  been  so  expressed  ;  that  the  bank  was  the  fast  land 
which  confines  the  water  of  the  river  in  its  channel  or  bed  in  its 
whole  width,  and  that  that  was  to  be  the  line  ;  that  both  bank  and 
beds  are  to  be  ascertained  by  inspection ;  and  that  the  line  was 
where  the  action  of  the  water  has  permanently  marked  itself  upon 
the  bank,  rejecting  altogether  the  attempt  to  trace  the  line  by 
either  ordinary  low-water  or  low-water.  And  the  court  observed 
that  these  terms  are  only  predicable  of  those  parts  of  rivers  witliin 
the  ebb  and  flow  of  the  tides,  to  •  distinguish  the  water-line  at 
spring  or  neap-tide  {Howard  v.  Ligersoll,  13  Hovj.  B.,  381,  416). 

The  same  court  held,  at  a  much  earlier  day,  that,  when  a  great 
river  is  the  boundary  between  two  nations  or  States,  if  the  original 
property  is  in  neither,  and  there  be  no  convention  respecting  it, 
each  holds  to  the  middle  of  the  stream.  But  when  one  State  is 
the  original  proprietor,  and  grants  the  territory  on  one  side  only, 
tiiat  it  retains  the  river  within  its  own  domain,  and  the  newly 
erected  State  extends  to  the  river  only,  and  the  low-water  mark  is 
its  boundary.  It  was  accordingly  decided  that  the  boundary  of 
the  State  of  Kentucky  extends  only  to  low-water  mark  on  the 
western  or  north-western  side  of  the  River  Ohio  ;  and  does  not 
include  a  peninsula,  or  island,  on  the  western  or  north-western 
bank,  separated  from  the  main  land  by  a  channel  or  bayou,  which 


BOUyDARIES   OF  STATES  AND    THE  LIKE.  230 

is  filled  with  water  only  when  the  river  rises  above  its  banks,  and 
is,  at  other  times,  dry.  And  tlie  doctrine  was  laid  down  that  if 
a  river,  snbjeet  to  tides,  constitntes  tlie  boundary  of  a  State,  and 
at  flood  the  waters  of  the  river  flow  through  a  narrow  channel 
round  an  extensive  body  of  land,  but  recede  from  that  channel  at 
ebb,  so  as  to  leave  the  land  it  surrounds  at  high-water  connected 
with  the  main  body  of  the  country,  this  portion  of  territory 
will  scarcely  be  considered  as  belonging  to  the  State  on  the 
opposite  side  of  the  river,  although  that  State  sliould  have  the 
property  of  the  river.  And  it  was  very  properly  suggested  that,  in 
great  questions  which  concern  the  boundaries  of  States,  where 
great  natural  boundaries  are  established  in  general  terms,  with  a 
view  to  public  convenience  and  the  avoidance  of  controversy,  the 
great  object,  where  it  can  be  distinctly  perceived,  ought  not  to  be 
defeated  by  those  technical  perplexities  which  may  sometimes 
influence  contracts  between  individuals  {Ilandly's  Lessee  v. 
Anthony,  5  Wheat.  B.,  374). 

The  Supreme  Court  of  the  United  States  have  twice  adjudged 
that  the  western  boundary  of  the  State  of  Georgia  is  on  the  west 
bank  of  the  Chattahoochee  river ;  that  is  to  say,  the  State  of 
Georgia,  in  1802,  ceded  to  the  United  States  all  the  land  "west 
of  a  line  beginning  on  the  western  bank  of  the  Chattahoochee 
river,"  and  "  running  thence  up  the  said  River  Chattahoochee  and 
along  the  western  bank  thereof."  The  court  held  that  the  State 
of  Georgia  retained  the  bed  of  the  river  as  far  as  the  natural  line, 
marked  by  the  action  of  the  running  water  dividing  the  bed  of 
the  river  from  the  western  bank  {Howard  v.  Ingersoll,  13  IIoio. 
R.,  381).  And  the  same  view  was  taken  by  the  same  court  in  a 
later  case,  and  the  line  indicated  was  declared  to  be  the  true 
boundary  between  the  States  of  Georgia  and  Alabama  {Alabama 
V.  Georgia,  23  How.  R.,  505). 

It  has  been  decided  by  the  Supreme  Court  of  the  United  States 
that  the  eastern  boundary  of  the  State  of  Missouri  is  the  middle 
of  the  Mississippi  river.  The  line  has  not  been  thus  established 
in  a  case  directly  between  the  State  of  Missouri  and  either  of  the 
adjoining  States;  but  it  has  been  declared  in  other  cases  involving 
the  question  {Jones  v.  Soulard,  2-1  How.  R.,  41 ;  Schools  v.  Ris- 
ley,  10  ]Vall.  /?.,  91).  And  the  same  high  court  has  authoritively 
fixed  the  boundary  line  between  the  State  of  Missouri  and  the 
State  of  Iowa.     The  case  before  the  court  was  substantially  the 


240  ivlir   OF  BOUNDARIES. 

following:  The  western  and  north-western  boundary  lines  of  the 
State  of  Missouri,  as  described  in  the  first  article  of  the  Constitu- 
tion of  that  State,  were  as  follows  :  from  a  point  in  the  middle  of 
Kansas  river,  where  the  same  empties  into  tlie  Missouri  river, 
running  due  north  along  a  meridian  line  to  the  intersection  of  the 
parallel  of  latitude  which  passes  through  the  rapids  of  the  River 
Des  Moines,  making  said  line  correspond  with  the  Indian  bound- 
ary line ;  thence  east  from  the  point  of  intersection  last  aforesaid, 
along  the  said  parallel,  to  the  middle  of  the  channel  of  the  main 
fork  of  the  said  River  Des  Moines,  etc.  etc.  The  Constitution  of 
the  State  of  Missouri  was  adopted  in  1820;  but  in  1816  an  Indian 
boundary  line  had  been  run  by  the  authority  of  the  United  States, 
which,  in  its  north  course,  did  not  terminate  at  its  intersection 
with  the  parallel  of  latitude  which  passed  thi-ougli  the  rapids  of 
the  River  Des  Moines,  and,  in  its  east  course,  did  not  coincide 
wuth  that  pai-allel  or  any  parallel  of  latitude  at  all.  The  State  of 
Missouri  claimed  that  this  north  line  should  be  continued  until  it 
intersected  a  parallel  of  latitude  which  passed  through  certain 
rapids  in  the  River  Des  Moines,  and  from  the  point  of  intersec- 
tion be  run  eastwardly  along  the  parallel  to  these  rapids.  The 
State  of  Iowa  claimed  that  this  Indian  boundary  line  was  pro- 
tracted too  far  to  the  north ;  that,  by  the  term  "  rapids  of  the 
River  Des  Moines,"  was  meant  certain  rapids  in  the  Mississippi 
river  known  by  that  name,  and  that  the  parallel  of  latitude  must 
pass  through  these  rapids ;  the  effect  of  which  M'ould  be  to  stop 
the  Indian  boundary  line  in  its  progress  north  before  it  arrived  at 
the  spot  w^hich  had  been  marked  by  the  United  States  surveyor. 
While  Iowa  remained  a  Territory,  tlie  United  States  recognized 
the  Indian  boundary  line  by  treaties  made  with  the  Indians,  by 
the  acts  of  the  general  land  office,  and  by  congressional  legisla- 
tion. On  the  other  hand,  there  were  no  rapids  in  the  River  Des 
Moines  so  conspicuous  as  to  justify  the  claim  of  Missouri.  The 
court  held  that  the  southern  boundary  line  of  Iowa  was  coincident 
with,  and  dependent  upon,  the  northern  boundary  line  of  Mis- 
souri; that  lo'Nva  was  bound  by  the  acts  of  the  United  States,  its 
predecessor,  done  while  the  government  of  the  United  States  had 
plenary  jurisdiction  over  the  subject,  that  is,  as  long  as  Iowa 
remained  a  Territory  ;  and,  therefore,  the  court  adopted  the  old 
Indian  boundary  line  as  the  dividing  line  between  the  two  States, 


BOUNDARIES   OF  STATES  AXD    THE  LIKE.  24J_ 

and  decreed  that  it  be  run   and  marked  by  commissioners  (Jfis- 
souri  V.  Iowa,  7  IIoio.  12.,  6G0), 

The  Court  of  Appeals  of  the  State  of  New  York  liave  lately 
decided  that  the  boundary  line  between  that  State  and  the  State 
of  New  Jersey,  south  of  the  forty-first  degree  of  north   latitude, 
is  the  middle  of  the  Hudson  river,  of  the  Bay  of  New  York,  of 
the  waters  between  Staten  Island  and  New  Jersey  and  of  Earitan 
bay  to  the  main  sea,  except  that  the  islands  embraced  in  these 
waters  and  lying  west  of  the  middle  thereof  belong  to  and  are 
under  the  jurisdiction  of  the  State  of  New  York.     And  the  court 
held  that  the  State  of  New  York  had  exchisive  jurisdiction  over 
the  waters  to  low-water  mark  on  the  New  Jersey  shore,  and  over 
ships,  vessels  and  craft  of  every  kind  afloat  in   the  bay  of  New 
York  and  Hudson  river,  south  of  Spuyten  Duyvil  creek,  for  quar- 
antine and  health  purposes,  the  protection  of  passengers  and  pro- 
perty, to  secure  the  interests  of  trade  and  commerce,  and  to  pre- 
serve the  public  peace.     It  was  declared,  however,  that  it  was  a 
qualified  and  limited  jurisdiction,  for  police  and  sanitary  purposes, 
and  to  promote  the  interest  of  commerce.     And   the   court  laid 
down  the  general  proposition,  that  each  State  has  absolute  control 
over  its  own  soil  and  everything  annexed  or  attached  thereto,  and 
over  all  vessels  attached  to  the  piers  or  wharves,  and  lying  in  the 
docks  upon  its  own  shore,  or  aground  on  its  shore,  and  over  the 
persons  or  property  of  such  wharves,  docks  or  vessels,  except  that 
all  such  vessels  in  the  Bay  of  New  York  and  Hudson  river  are 
subject  to  the  quarantine  or  health  laws,  and  laws  in  relation  to 
passengers  enacted  by  the  State  of  New  Yoi-k.     The  court  also 
held  that  the  State  of  New  Jersey  has  exclusive  jurisdiction  and 
control  over  the  piers,  wharves,  docks   and   other  improvements 
erected  or  to  be  erected   on   the  shores  of  that  State ;  that   this 
jurisdiction    extends  to  and  embraces  the  whole   subject   of  such 
improvements,  and  includes  the  power  to  prescribe  when,  where 
and  how  they  shall  be  erected,  and   to  exercise   all    control   over- 
them  which  government  can  possess  over  property  of  its  citizens.. 
And   the  majority    of  the    court  decided   that  the  courts  of  the 
State  of  iSew  York  have  no  jurisdiction  to  restrain,  the  erection 
or  order  the  removal  of  structures  extending  into- the  bay  or  river 
from  the  New  Jersey  shore;  even  if  they  are  a  public  nuisance,, 
as  affecting  injuriously  the  general  and  common,  use  of  those  navi- 
gable waters.     These  several  propositions  were  laid  down,  in  con- 
31 


242  LAW  OF  BOUNDARIES. 

formity  with  a  veiy  able  and  exhaustive  opinion  by  E.  Darwin 
Smith,  J.,  who  examined,  at  great  length,  the  documents,  laws 
and  ordinances  affecting  the  subject  of  the  territorial  boundary 
between  the  two  States.  Earl,  Ch.  J.,  also  delivered  a  very  able 
and  elaborate  opinion  in  the  case,  agreeing  in  the  main  with  the 
majority  of  the  court,  but  dissenting  from  the  decision  in  respect 
to  the  want  of  jurisdiction  of  the  New  York  courts,  as  contained 
in  the  proposition  last  stated.  The  whole  case  is  calculated  to 
shed  much  light  upon  the  important  questions  examined  by  the 
court  {The  People  v.  The  Central  Railroad  Comjpany  of  New 
■Jersey,  42  N.  Y.  R.,  283-316). 

In  a  controversy  between  the  States  of  Kentucky  and  Missouri 
before  the  Supreme  Court  of  the  United  States,  in  1870,  it  was 
incidentally  decided  that  all  of  the  States  bounded  upon  the  Mis- 
sissippi river  were  bounded  by  the  middle  of  the  channel  of  that 
river.  And  it  was  directly  decided  that  Wolf  Island,  in  the  Mis- 
sissippi river,  about  twenty  miles  below  the  mouth  of  the  Oliio,  is 
a  part  of  the  State  of  Kentucky,  and  not  a  part  of  the  State  of 
Missouri,  for  the  reason  that  it  appeared,  from  the  testimony,  that 
such  island  is  situated  east  of  the  main  channel  of  the  river,  as  it 
was  at  the  time  the  boundary  between  the  States  was  fixed.  Mr. 
Justice  Davis  delivered  the  opinion  of  the  court,  and  examined 
the  questions  involved  at  considerable  length.  A  short  extract 
from  the  opinion  contains  important  principles,  and  is  here 
inserted.  The  learned  justice  said :  "  It  is  unnecessary,  for  the 
purposes  of  this  suit,  to  consider  whether,  on  general  principles, 
the  middle  of  the  channel  of  a  navigable  river  which  divides 
coterminous  States  is  not  the  true  boundary  between  them,  in  the 
absence  of  express  agreement  to  the  contrai-y,  because  the  treaty 
between  France,  Spain  and  England,  in  February,  1703,  stipu- 
lated that  the  middle  of  the  River  Mississippi  should  be  the 
boundary  between  the  British  and  the  French  territories  on  the 
continent  of  North  America.  And  this  line,  established  by  the 
only  sovereign  powers  at  the  time  interested  in  the  subject,  has 
remained  ever  since  as  they  settled  it.  It  was  recognized  by  the 
treaty  of  peace  with  Great  Britain  of  1783,  and  by  different 
treaties  since  then,  the  last  of  which  resulted  in  the  acquisition  of 
the  Territory  of  Louisiana  (embracing  the  country  west  of  the 
Mississippi)  by  the  United  States  in  1803.  The  boundaries  of 
Missouri,  when  she  was  admitted  into  the  Union  as  a  State  in 


BOUXD ARIES   OF  STATES  AXD    THE   LIKE.  243 

1820,  were  fixed  on  this  basis,  as  were  those  of  Arkansas  in  1836 
(3  Stat,  at  Large,  545 ;  5  ib.,  p.  50).     And  Kentneky  snccecded, 
in  1792  (1  Stat,  at  Large,  189),  to  the  ancient  right  and  possession 
of  Virginia,  which  extended,  by  virtue  of  these  treaties,  to  the  mid- 
dle of^he  bed  of  the  Mississippi   river.     It   follows,  therefore, 
that  if  AYolf  Island,  in  1763,  or  in  1820,  or  at  any  intermediate 
period  between  those  dates,  was  east  of  this  line,  the  jurisdiction 
of  Kentucky  rightfully  attached  to  it.     If  the  river  has  subse- 
quently turned   its  course,  and  now  runs  east  of  the  island,  the 
status  of  the  parties  to  this  controversy. is  not  altered  by  it,  for 
the  channel  which  the  river  abandoned  remains,  as  before,  the 
boundary  between  the  States,  and  the  island  does  not,  in  conse- 
quence ot  this  action  of  the  water,  change  its  owner  {Heffter,  Du 
Droit  Lnternational,p.  143,  §  60  ;  Caratheadery,  Da  Droit  Lnter- 
national,  62)."     The  learned  justice  then  carefully  and  critically 
examined  the  evidence  in  the  case,  consisting  of  the  testimony  of 
living  witnesses,  the  physical  changes  and  indications  at  and  above 
the  island,  and  the'maps  and  books  produced  by  the  complainant, 
remarking  that,  in  a  controversy  of  the  nature  of  the  case  at  bar, 
when  Sta'te  pride  was  more  or  less  involved,  it  was  hardly  to  be 
expected  that  the  witnesses  would  all  agree  in  their  testimony,  and 
hence   it  was  necessary  to  consider   the   evidence  somewhat  in 
detail,  which  was  done,  and  the  conclusion  was  reached  that  "  the 
State  of  Missouri  has  no  just  claim  to  the  possession  of  Wolf 
Island  "  {Missouri  v.  I^cntucky,  11  Wall.  R.,  395,  401-411). 

At  the  same  term  of  the  Supreme  Court  of  the  United  States 
it  was  decided  that  such  court  had  original  jurisdietion,  under  the 
Constitution,  of  controversies  between  States  of  the  Union  con- 
cerning  their   boundaries ;    and    that  this  jurisdiction   was    not 
defeated  because  in  deciding  the    question    of  boundary   it  was 
necessary   to   consider   and   construe   contracts   and   agreements 
between  the  States,  nor  because  the  judgment  or  decree  of  the 
court  may  affect  the  territorial  limits  of  the  jurisdiction  of  the 
States  that  are  parties  to  the  suit.     And  the  court  accordingly 
adjudicated  the  question  before  it,  and  decided  that  the  counties 
of  Jefferson  and  Berkely,  formerly  belonging  to  the  old  State  ot 
Yiro-inia,  have  become  and  now  belong  to  the  new  State  of  West 
Virginia  (  Virginia  v.  West  Virginia,  11  Wall  R.,  39).     And  the 
sam^e  high  court  decided,  in  1838,  that  such  court  had  jurisdiction 
of  a  bill  filed  by  the  State  of  Rhode  Island  against  the  State  of 


244  LAW  OF  BOUNDARIES. 

Massachusetts,  to  ascertain  and  establish  the  northern  boundaries 
between  the  States,  that  the  rights  of  sovereignty  and  jurisdiction 
be  restored  and  contirmed  to  the  plaiutiifs,  and  thej  be  quieted  in 
tlie  enjoyment  thereof  and  their  title,  and  for  other  and  further 
relief  {The  State  of  Rhode  Island  and  Providence  Plantations 
V.  The  Commonwealth  of  Massachusetts,  12  Peters'  P.,  657;  and 
vide  same  case  in  1-^  ib.,  210,  a7id  in  15  ib.,  233). 


CHAPTER  XX. 

KEMEDIES  AND  PROCEEDINGS  TO  DETEKMINE  UNSETTLED  B0TJNDAEIE8 

*  WHEN  THE  QUESTION   MAY    BE    SETTLED  AT    LAW STATUTORY  TRI- 
BUNALS TO  SETTLE  BOUNDARIES THE  FRENCH  AND  ROMAN  CODES 

LEGAL   REMEDIES    LST   THE    AMERICAN    STATES SETTLING    DISPUTED 

BOUNDARY  BY  PAROL  AGREEMENT. 

A  FEAV  suggestions  become  necessary  in  respect  to  the  remedies 
in  cases  where  boundaries  of  real  property  have  become  confused 
or  the  question  of  boundary  lines  is  in  dispute.  The  form  of  pro- 
ceeding in  such  cases  is  often  prescribed  by  statute.  By  the 
French  Code,  every  proprietor  may  compel  his  neighbor  to  deter- 
mine the  boundaries  of  his  contiguous  properties,  and  the 
method  of  proceeding  is  pointed  out.  In  such  cases,  the  expense 
of  determining  the  boundaries  must  be  at  the  common  expense  of 
the  adjoining  proprietors  {Code  Napoleon,  article  ^^'o). 

In  respect  to  the  Roman  method  of  determining  boundaries, 
Dr.  Col(j[uhoun,  a  British  statist,  gives  the  following  account : 
"  The  Twelve  Tables  and  lex  j^iawtVitt  provided  for  the  appointment 
of  agri  mensores,  or  professional  engineers,  who  were  enabled  to 
determine  questions  of  confused  boundary  without  ditJiculty,  for 
the  Romans  had  tiie  most  exact  surveys,  not  only  of  Italy,  but 
also  of  the  provincial  lands,  municipalities  and  colonies;  and  so 
accurate  were  these,  that  not  only  were  the  mere  boundaries  ol 
contiguous  estates  laid  down,  but  even  the  hedges  and  olive  trees, 
together  with  the  number  of  slaves,  buildings,  etc.,  were  marked 
or  scheduled.  These  maps  were  engraved  on  tablets  of  brass,  and 
depo&ited  in  the  -^rarium  at  Rome  ;  in  the  case  of  municipalities 
and  the  like,  the  original  was  preserved  in  the  like  manner,  but  a 


DISPUTED   BOUNDARIES^   HOW  SETTLED.  245 

copy,  printed  off  on  linen  from  the  engrav^ing,  was  sent  to  the 
locality  to  which  it  applied.  These  surveys  being  made  on  an 
accnrate  scale,  there  was,  therefore,  very  little  difficulty  in  an  agrl 
rnensor  ascertaining  the  exact  spot,  and  by  measuring  from  any 
fixed  points,  about  which  he  entertained  no  doubt,  he  could  easily 
settle  a  boundary  in  a  far  more  satisfactory  manner  than  by  exam- 
ining peasant  people  who  had  attained  fabulous  ages,  which  render 
them  decrepit  in  body  and  imbecile  in  mind.  *  *  *  J^ot  only 
the  boundary  must  have  been  declared,  but  the  id  quod  interest 
was  to  be  compensated,  with  mesne  profits  realized  and  every 
damage.  The  judge  investigated  the  whole  boundaries,  taking  the 
evidence  from  landmarks,  the  courses  or  witnesses,  with  the  power 
of  summoning  the  assistance  of  civil  engineers,  or  viewing  the 
locality.  If  the  dispute  could  not  be  otherwise  terminated  con- 
veniently, he  might  adjudicate  an  appropriate  piece  of  another's 
land,  to  be  paid  for  at  such  estimation  as  he  might  think  fit " 
{Colquhou'ti's  Summary  of  the  Civil  Law,  §  2179). 

Upon  this  subject  Mr.  Justice  Story,  referring  to  Domat,  Coke 
on  Littleton,  Hargrave's  Notes,  and  the  Digest,  for  authority, 
observes:  "  The  civil  law  was  fiir  more  provident  than  ours  upon 
the  subject  of  boundaries.  It  considered  that  there  was  a  tacit 
agreement,  or  duty,  between  adjacent  proprietors  to  keep  up  and 
preserve  the  boundaries  between  their  respective  estates;  and  it 
enabled  all  persons,  having  an  interest,  to  bring  a  suit  to  have  the 
boundaries  between  them  settled  ;  and  this,  whether  they  were 
tenants  for  j-ears,  usufructuaries,  mortgagees  or  other  proprietors. 
The  action  was  called  actio  finium  regundorum  ;  and  if  the  pos- 
session was  also  in  dispute,  that  might  be  ascertained  and  fixed  in 
the  same  suit ;  and,  indeed,  was  incident  to  it.  Perhaps  it  might 
not  have  been  originally  unfit  for  courts  of  equity  to  have  enter- 
tained the  same  general  jurisdiction  in  cases  of  confusion  of  bound- 
aries, upon  the  ground  of  enforcing  a  specific  performance  of  the 
implied  engagement  or  duty  of  the  civil  law.  Such  a  broad  origin 
or  exercise  of  the  jurisdiction  has,  however,  never  been  claimed 
or  exercised"  (I  Story'' s  Equity  Jur.,  §  614). 

In  England  there  is  an  act  of  Parliament  relating  to  the  man- 
agement of  the  queen's  woods  and  forests,  M-hich  contains  several 
provisions  enabling  the  commissioners  of  woods  and  forests  to 
settle  disputes  and  differences  touching  the  boundaries  or  extent 
of  lands  within  their  jurisdiction ;  and   such  commissioners  are, 


246  LAW  OF  BOUNDARIES. 

moreover,  empowered  to  inquire  into  trespasses,  encroacliraents, 
and  inelosures,  which  have  been  made  on  the  royal  forests  (10  Geo. 
IV,  chap.  50,  §§  94,  96,  98,  100). 

In  many  of  the  American  States  the  Legishitiires  have  provided 
for  special  tribunals  to  settle  disputes  in  respect  to  questions  of 
boundary  between  adjoining  owners  of  land.  For  example,  in 
the  State  of  Maine  the  statute  provides  tliat,  in  case  of  a  contro- 
versy between  adjoining  towns,  the  court  may  appoint  commis- 
sioners who  are  required  to  ascertain  and  determine  the  line  or 
lines  in  dispute,  and  the  method  of  proceeding  is  prescribed 
{Revised  Statutes  o/lSTl,  chap.  3,  §  40). 

The  courts  have  held  that,  in  such  cases,  the  validity  and  efficacy 
of  the  proceedings  of  the  commissioners  must  be  determined  upon 
the  facts  appearing  on  the  reports ;  and  that  if  the  report  does  not 
"  ascertain  and  determine  "  the  line,  the  "  controversy  "  is  not  ter- 
minated, and  commissioners  may  be  appointed  on  a  new  petition. 
And  it  was  accordingly  held,  in  one  case,  that  a  report  declaring 
that  the  commissioner  do  "  award  and  determine  "  that  a  certain 
defined  line  "  shall  be  the  true  boundary,"  etc.,  did  not  make  it 
certain  that  they  did  not  establish  a  new  line,  instead  of  ascertain- 
ing and  renewing  the  old  one ;  and,  hence,  that  the  report  was 
insufficient  {Lishon  v.  Boivdoin*  53  2Iaine  B.,  324).  And  it 
would  seem  that,  in  the  State  of  Maine,  an  action  may  be  main- 
tained to  determine  the  boundary  line  between  the  adjacent  lands 
of  two  parties  in  dispute  {Chase  v.  White.  41  JUaine  Ji.,  228). 

In  the  State  of  New  Hampshire  there  is  a  statute  which  impow- 
ers  the  court  to  appoint  a  committee  to  ascertain  the  boundary 
line  between  two  adjoining  towns  {Revised  Statutes,  cha_p.  37, 
§  6).  And  the  Supreme  Court  of  the  State  has  held  that  the 
judgment  of  the  Court  of  Common  Pleas,  upon  the  report  of  a 
committee,  under  the  provisions  of  that  statute,  is  a  judgment  in 
rem,  and  conclusive  upon  all  persons.  It  is  held  that  the  effect 
of  such  a  judgment  is  not  merely  prospective.  It  is  an  adjudica- 
tion not  only  of  wliere  the  line  is,  but  wliere  it  always  has  been 
since  it  was  established  by  the  incorporation  of  the  town;  and  is, 
therefore,  conclusive  upon  the  parties  in  a  suit  against  one  of  the 
towns,  pending  when  the  judgment  was  rendered,  and  in  which 
was  involved  an  inquiry  into  the  location  of  the  boundary.  And 
it  was  held  further,  in  the  case,  that  the  proceeding  of  the  select 


DISPUTED   BOUNDARIES,    HOW  SETTLED.  247 

men  of  the  adjoining  towns,  in  perambulating  the  line  and  renew- 
ing the  marks  and  bounds,  are  not  conclusive  evidence  of  its  true 
location  {Pitman  v.  Alba^iy,  34  iV^.  //.  7?.,  577). 

In  the  State  of  Connecticut  a  statute  exists  which  provides  as 
follows:  "Whenever  the  boundaries  of  lands  between  two  or 
more  adjoining  proprietors  shall  have  been  lost,  or  by  time,  acci- 
dent or  any  other  cause  shall  have  become  obscure  or  uncertain, 
and  the  adjoining  })roprietors  cannot  agree  to  establish  the  same, 
one  or  more  of  said  adjoining  proprietors  may  bring  his  petition 
in  equit}^  to  the  Superior  Court  for  the  county  in  which  such  lands 
or  a  portion  of  them  are  situated,  and  such  Superior  Court,  as  a 
court  of  equity,  may,  upon  such  petition,  order  such  lost  and 
uncertain  bounds  to  be  erected  and  established  ;  and,  for  that  pur- 
pose, may  appoint  a  committee  of  not  more  than  three  able,  judi- 
cious and  disinterested  freeholders  of  this  State,  who  shall  issue  due 
and  reasonable  notice  to  all  parties  in  said  lands  to  appear  before 
them  ;  and  said  committee  shall  take  tlie  oath  hereinafter  provided, 
and  shall,  as  soon  as  may  be,  inquire  into  the  facts  and  proceed  to 
erect  and  establish  such  lost  and  uncertain  bounds,  and,  when 
necessary,  may  employ  a  surveyor  to  assist  therein  ;  and  said  com- 
mittee shall,  as  soon  as  may  bo,  report  the  facts  and  their  doings 
to  the  Superior  Court,  pursuant  to  their  appointment ;  and  if  said 
court  shall  find  said  parties  have  been  duly  notified  and  heard,  or 
had  an  opportunity  to  be  heard,  they  may  approve  and  by  decree 
confirm  the  doings  of  said  committee ;  and  certified  copies  of  said 
report  and  decree  shall  be  recorded  in  the  records  of  the  town  or 
towns  in  which  said  lands  are  situated;  and  the  bounds  so  erected 
and  established  shall  be  the  legal  bounds  between  said  adjoining 
proprietors"  {Conn.  Gen.  Statutes,  543,  §  33). 

The  Connecticut  statute,  providing  the  means  for  restoring  lost 
or  uncertain  boundaries,  contemplates  a  proceeding  in  equity  to 
efiect  the  purpose;  and,  hence,  the  ecpiitable  powers  of  the  court 
are  extended  to  many  cases  which  they  would  not  reach,  except 
for  the  statute.  Under  this  statute  the  Supreme  Court  of  Errors 
of  the  State  have  decided  that  it  is  not  necessary  for  the  court,  by 
a  preliminary  hearing,  to  determine  whether  there  is  in  fact  a  lost 
or  uncertain  boundary,  but  that  the  question  may  properly  be 
refen-ed  to  the  committee  with  the  rest.  The  proceeding  is  a 
statutory  one,  and  the  court  hold  that  the  object  of  the  statute 
was  not,  by  this  summary  proceeding,  to  determine  the  title  tc 


248  LAW    OF  BOUSD ARIES. 

land,  or  settled,  disputed  or  uncertain  lines  between  adjoining 
proprietors,  but  to  restore  the  marks  of  dividing  lines  that  have 
once  existed,  and  have  been  displaced  or  destroyed  or  have  become 
obscure.  Ilinman,  Ch.  J.,  delivered  the  opinion  of  the  court,  and, 
after  repeating  the  language  of  the  statute,  and  referring  to  a 
prior  case  decided  by  the  same  court,  observed :  "  It  was  not  the 
intention  of  this  statute  to  withdraw  cases  relating  to  the  title  to 
land  from  the  ordinary  tribunals,  assisted  as  tbey  are  in  respect  to 
the  finding  of  facts  by  a  jury.  The  Legislature  intended  to  guard 
against  this  abuse  of  the  statute  in  the  first  clause  of  it,  which 
limits  the  action  of  the  court,  as  a  court  of  equity  under  it,  to 
cases  where  the  houndaries  between  adjoining  proprietors  have 
been  lost,  etc.  And  by  boundaries,  as  here  used,  is  obviously 
meant  the  ordinary  monuments  intended  to  mark  the  line  between 
adjoining  proprietors.  It  presupposes  that  such  monuments  once 
existed,  and  have  ceased  to  exist,  or  that  they  have  become  so 
obscure  as  to  require  the  erection  of  new  ones.  It  was  not 
intended  that  every  uncertain  line  of  division  between  adjoining 
proprietors  should  be  definitely  fixed  by  a  committee  of  the 
Superior  Court.  Suppose  a  proprietor  had  encroached  upon  an 
adjoining  proprietor  fur  so  long  a  time  and  under  such  circum- 
stances that  he  could  not  be  divested  of  his  possessions,  no  one 
Avould  claim  that  he  could  call  upon  the  court  to  fix  a  boundary 
for  him  up  to  the  line  that  he  had  occupied  ;  and  there  is  little 
reason  for  claiming  that  his  adjoining  proprietor  could  call  upon 
the  court  to  determine  by  a  committee  where  the  original  line 
really  was,  so  long  as  the  original  monuments  which  defined  that 
line  remained.  The  object  is  not  to  try  the  question  of  title  on 
either  side  of  the  line,  but  to  mark  the  place  of  the  old  line  where 
the  ancient  monuments  are  gone"  (  West  Hartford  Ecclesiastical 
Society  v.  The  First  Baptist  Church  in  West  Hartford^  35  Conn. 
Jl.,  117,  119,  120).  But  the  same  court  had  previously  decided 
that  the  statute  under  consideration,  which  was  passed  in  1859,  con- 
ferred a  jurisdiction  upon  the  said  Superior  Court,  in  respect  to 
ascertaining  lost  boundaries,  which  was  not  dependent  on  the 
want  of  adequate  remedy  at  law.  And,  therefore,  it  was  held 
that  the  court  acts  under  the  statute  as  in  ordinary  cases  in  equity, 
and  is  not  bound  to  confirm  the  doings  of  the  committee  in  such 
cases,  but  may,  where  the  facts  reported  are  not  sufficient  to  jus- 
tify a  decree  for  the  petitioner,  dismiss  the  bill.     The  court  "fur 


DISPUTED   BOUXD ARIES,    HOW  SET! LED.  249 

tlicr  held  that  a  lost  or  uncertain  boundary,  under  the  statute,  is  a 
boundary  which  has  lost  its  distinctive  character  as  such  by 
removal,  displacement,  decay  or  change,  so  that  it  no  longer 
answers  the  purpose  of  a  bound  in  defining  the  true  line,  and 
that  it  was  immaterial  whether  the  same  was  a  natural  or  artificial 
object.  Butler,  J.,  delivered  the  opinion  of  the  court;  and  in  the 
course  of  his  remarks  he  gave  the  history  and  purpose  of  the  law 
under  consideration.  He  said  :  "  The  importance  of  having  fixed 
bounds  between  adjoining  proprietors  was  recognized  earl^^  in  the 
history  of  the  State,  In  1719,  when  all  equity  power  remained  in. 
the  General  Assembly,  and  when  every  adjoining  proprietor  was 
required  to  bound  everv  parcel  of  his  land  'with  sufficient  mere 
stones,  at  least  eighteen  inches  long,  whereof  six  inches  should  be 
above  ground,'  under  a  penalty  of  one  dollar  and  sixty-seven  cents 
per  month,  and  perambulate  his  lines  once  a  year  if  requested  by 
tbe  adjoining  proprietor,  under  a  penalty  of  eighty-fonr  cents  per 
day  for  every  day  he  should  refuse,  an  act  was  passed  providing 
for  the  'fixing'  of 'lost  bounds'  between  adjoining  proprietors  by 
freeholders,  appointed  by  an  assistant  or  justice  of  the  peace.  But 
that  act  transferred  no  title  or  possession,  and  prevented  no  pro- 
ceedings at  law ;  and,  unless  acquiesced  in,  the  only  eifect  was  to 
make  a  'prima  facie  case  in  favor  of  the  plaintiflf.  That  statute 
was  practically  of  little  use,  for  the  want  of  force  and  finality  in 
the  proceedings,  and  was  omitted  in  the  revision  of  1S21.  In 
1832  another  statute  M'as  passed  of  substantially  the  same  charac- 
ter, with  a  provision  that  if  the  parties  did  not  abide  the  action  of 
the  freeholders,  and  litigation  ensued,  the  plaintiff,  if  unsuccessful, 
should  pay  double  cost.  That  statute  was  also  found  to  be  of 
little  practical  importance  for  the  same  reason ;  and  in  1859  the 
statute  in  question  was  passed,  placing  the  power  in  the  Superior 
Court  '««  a  court  of  e<piity^  for  the  obvious  and  necessary  pur- 
pose of  making  its  decree  final  and  conclusive  upon  the  parties, 
and  giving  it  all  the  effect  of  a  decree  in  equity.  We  think  it 
entirely  clear,  therefore,  that  the  parties  stood  before  the  court  as 
in  any  other  case  where  the  tacts  have  been  found  by  a  committee, 
and  their  report  is  accepted,  establishing  them  as  the  facts  of  the 
case  on  which  the  court  is  to  act;  and  that  it  is  competent  for  the 
court  to  disapprove  the  doings  of  the  committee  and  dismiss  the 
petition,  or  approve,  confirm  and  establish  them  by  suitable 
decree;  and  that  tlie  (juction  whether  the  facts  will  justify  the 
32 


250  i.lTF   Ot   BOUNDARIES. 

erection  of  the  bounds  fixed  by  the  committee,  and  their  estab- 
lishment by  this  court,  is  now  legitimately  before  this  court." 
After  referring  to  the  tacts  of  the  case,  the  learned  judge  pro- 
ceeds: "  What,  then,  is  a  lost  boundary?  It  is  a  boundary  which 
has  lost  its  distinctive  character  as  sucli  by  removal,  displacement, 
decay  or  change,  so  that  it  no  longer  answers  the  purpose  of  a 
bound  in  defining  the  true  line  between  the  tracts.  And  it  is 
immaterial  whether  it  be  a  natural  object  or  an  artificial  one.  A 
tree  that  has  been  turned  over  with  its  roots  by  a  gale,  and  is 
lying  in  the  vicinity,  but  away  from  the  corner  or  the  line,  lias 
lost  its  place  and  its  distinctive  character  as  a  bound.  So  if  cut 
down,  and  the  stump  has  decayed  and  become  invisible.  So  of  a 
stone  which  has  been  displaced,  although  remaining  near  the 
place.  And  so  of  the  mouth  of  a  stream  which  has  been  filled  by 
a  sudden  avulsion,  and  has  broken  for  itself  a  new  mouth  at  a  dis- 
tance more  or  less  remote  from  the  line.  It  has  lost,  by  a  sudden 
removal  from  its  place,  or  a  series  of  sudden  removals  from  the 
line,  its  character  as  a  bound,  and,  although  once  certain,  has 
become  uncertain  and  unreliable  as  a  boundary"  {Ferry  v.  Pratt, 
31  Conn.  R.,  433,  441-443).  The  common-law  remedies  in  cases 
of  disputed  boundaries  may  still  be  resorted  to  in  the  State  of 
Connecticut,  notwithstanding  the  provisions  of  the  statute  which 
have  been  considered ;  and  in  most  cases  it  is  very  obvious  tlie 
old  remedies  must  be  invoked  for  the  purpose  of  settling  the 
matter  in  controversy. 

By  an  act  of  the  Legislature  of  the  State  of  Pennsylvania,  juris- 
diction is  conferred  upon  the  Supreme  Court  and  the  Court  of 
Common  Pleas  of  Philadelphia  county  respectively,  "  all  and  sin- 
gular the  jurisdiction  and  powers  of  a  Court  of  Chancery  in  all 
eases  of  disputed  boundaries  between  adjoining  and  neighboring 
lands  within  said  county,  whether  the  parties  owning  the  same 
hold  or  claim  to  hold  under  the  same  or  different  titles  "  {Laws  of 
1858,  ^A  267).  And  by  a  supplement  to  that  act  it  is  declared 
"  that  the  jurisdiction  and  powers  given,  by  the  act  to  which  this 
act  is  a  supplement,  to  the  courts  therein  named,  shall  extend  to 
and  embrace  the  ascertainment  and  adjustment  of  disputed 
boundaries  between  adjoining  and  neighboring  lands  in  the  county 
of  Philadelphia,  where  such  boundaries  are  or  shall  have  become 
confused  or  rendered  uncertain,  either  by  lapse  of  time,  by  natural 
causes,  or  by  the  act,  neglect  or  default  of  any  present  or  former 


DISPUTED  BOUNDARIES,    HOW  SETTLED.  251 

owner  or  occupant  thereof"  {Laws  of  1859,  p.  359).  It  will  be 
observed  that  these  acts  of  the  Pennsylvania  Legislature  are  con- 
fined in  tlieir  operation  to  the  county  of  Philadelphia,  and,  being 
local  in  their  effects,  the  Supreme  Court  of  the  State  has  declared 
that  they  are  not  entitled  to  be  regarded  with  any  unusual  favor  by 
the  courts,  and  are  not  to  be  extended  by  construction  beyond 
what  their  language  plainly  imports.  It  will  also  be  observed 
that  it  is  only  the  jurisdiction  of  a  court  of  chancery  which  is 
conferred  by  the  acts.  The  Supreme  Court  of  the  State  has  there- 
fore held  that  the  acts  are  confined  to  cases  which  are  properly 
the  subject  of  equitable  jurisdiction.  Sharswood,  J.,  who  deliv- 
ered the  opinion  of  the  court,  said  :  "  The  Legislature  probably 
could  not  have  been  induced  to  adopt  such  provisions  as  these  acts 
contain,  at  least  in  the  sense  which  is  claimed  for  them,  for  all 
parts  of  the  commonwealth ;  for  if  the  construction  contended  for 
be  sound,  they  would  draw  within  the  maw  of  a  court  of  equity 
all  questions  of  disputed  boundaries,  including  interfering  surve3'S 
and  settlements,  which  have  been  heretofore  chiefly  and  satisfac- 
torily committed  to  the  determination  of  courts  of  common  law, 
with  the  necessarily  accompanying  right  of  ti'ial  by  jury.  Even 
in  England  the  very  limited  jurisdiction  exercised  by  the  Court  of 
Chancery  upon  the  subject  of  boundaries  has  been  justly  regarded 
with  great  disfavor  and  jealousy.  In  a  leading  case.  Lord  Keeper 
Henley,  afterward  Lord  Chancellor  and  Earl  of  Northington,  used 
this  very  emphathic  language  :  '  There  have,  since  I  sat  here,  been 
several  (bills)  to  fix  boundaries,  where  a  right  to  the  freehold  of 
the  soil  has  been  incidental.  But  I  have  seen  such  frightful  con- 
sequences arising  from  them,  that  I  think  these  suits  are  very  far 
from  deserving  encouragement.  They  originally  came  into  this 
court  under  the  equity  of  preventing  multiplicity  of  suits;  yet  in 
those  cases  I  have  observed  that  they  have  been  sometimes  attended 
Mith  more  expense  than  if  all  the  suits  which  they  had  appi'e- 
hended,  and  which  they  were  brought  to  prevent,  had  actually 
l)cen  tried  at  law '  ( Wake  v.  Coiiyers,  1  Edeii.^  331  ;  2  Cox,  300). 
It  was  established  as  a  principle  in  that  case,  which  has  been  main- 
tained and  followed  ever  since,  that  the  court  has  no  jurisdiction 
to  fix  the  boundaries  of  legal  estates,  uidess  some  equity  is  super- 
induced by  the  act  of  the  parties  (2  Leading  Cases  in  Lquliy, 
318).  It  is  maintained,  however,  by  the  learned  counsel  for  the 
appellants,  that  the  acts  of  1858  and  1859  carry  the  jurisdiction 


252  LAW  OF  BOUNBABIES. 

exercised  by  the  Court  of  Chancery  in  England  on  tlie  subject  of 
disputed  boundaries,  and  it  is  frankly  conceded  that  there  a  mei-e 
dispute  as  to  the  dividing  line  of  two  adjoining  estates,  not  held 
under  the  same  title,  where  there  is  no  especial  equity  affecting 
the  defendant,  would  not  give  jurisdiction.  Unless  these  acts  are 
to  have  this  construction,  the  appellants  have  no  ground  to  stand 
upon.  No  special  equity  to  affect  the  defendants  is  alleged  or  pre- 
tended. It  M^as  a  very  grave  constitutional  question,  though  it 
must  now  be  regarded  as  solemnly  settled  by  this  court,  whether 
the  Legislature  can  constitutionally  transfer  any  part  of  the  com- 
mon-law jurisdiction  heretofoi'e  enjoyed  and  exercised  by  courts 
and  juries  to  a  court  of  chancery,"  The  learned  judge  then 
examined  the  constitutional  question  at  considerable  length,  and 
presented  some  strong  arguments  adverse  to  the  constitutionality 
of  the  acts  in  question,  but  finally  said :  "  We  do  not  hold  these 
acts  to  be  unconstitutional.  It  is  not  necessary  to  do  so.  We  are 
bound  to  give  them  such  a  construction  as  will  not  conflict  with 
the  Constitution ;  and  that  must  necessarily  be  that  they  are  con- 
fined in  their  true  intendment  to  cases  which  are  properly  the  sub- 
ject of  e<][uitable  jurisdiction.  That  jurisdiction  must  first  be 
shown  to  exist,  before  the  remedial  provisions  of  the  act  can 
apply."  It  was  then  shown  that  the  case  did  not  come  within  the 
ordinary  jurisdiction  of  a  court  of  chancery,  when  the  learned 
judge  concluded :  "  We  must  leave  these  parties,  therefore,  to 
their  legal  remedies,  for  they  have  none  but  legal  rights,  however 
convenient  the  appellants  may  think  it  to  have  a  commission  out 
of  chancery,  at  joint  expense,  to  decide  the  question  in  dispute 
as  to  the  course  of  the  lines,  to  run  them  by  actual  survey,  and  to 
make  partition  of  the  undivided  lands  between  the  parties.  A 
coui-t  of  equity,  as  has  been  said,  may  do  great  things,  but  not 
all  things  "  {Norris's  Appeal,  64  Penn.  R.,  275,  279,  280,  282, 
283). 

Most  of  the  American  States  have  made  provision  by  statute 
for  the  settlement  of  disputes  concerning  town  lines.  Some  of 
these  have  already  been  referred  to.  In  the  State  of  New  York 
it  is  provided  by  statute  that  "  whenever  a  dispute  shall  arise 
between  the  officers  of  two  or  more  towns  respecting  the  bounds 
of  either  of  such  towns,  on  the  same  being  represented  to  the  Sur- 
veyor-General, he  shall  hear  the  allegations  and  proofs  of  the  par- 
ties, and,  if  necessary,  shall  direct  a  survey  to  be  made,  and  shall 


DISPUTED  BOUNDARIES,   HOW  SETTLED.  253 

determine  such  dispute.  Such  determination  shall  be  filed  in  the 
office  of  the  Secretary  of  State,  and  shall  be  conclusive  upon  the 
subject  until  the  Legislature  shall,  bylaw,  otherwise  direct"  (1 
E.  S.,  182,  §§  5,  6  ;  1  Stat,  at  large,  182,  183).  There  seems  to 
be  no  provision  by  statute  in  respect  to  determining  a  disputed 
boundary  between  adjoining  lands  held  by  different  owners.  It 
will  not  be  necessary  to  refer  to  the  statutes  of  other  States  pro- 
vidino-  for  the  settlement  of  the  boundaries  of  the  towns  thereof, 
for  the  reason  that  such  questions  seldom  arise,  and,  where  they 
do  arise,  the  statutes  may  readily  be  consulted. 

Disputes  in  respect  to  boundary  lines  between  adjoining  owners 
of  lands  are  settled,  in  a  majority  of  cases,  in  the  action  of  eject- 
ment or  the  action  for  the  recovery  of  real  property ;  and  not 
unfrequently  the  action  for  trespasses  upon  lands  turns  exclusively 
upon  the  question  of  boundary.  These  cases  ai-e  not  prosecuted 
with  the  ostensible  object  of  determining  the  true  boundaries 
between  the  parties ;  but  probably  a  majority  of  the  cases  of  eject- 
ment are  brought  to  recover  lands  claimed  by  the  defendant  to 
be  embraced  wathin  his  own  boundary  line,  in  opposition  to  the 
line  claimed  by  the  plaintiff;  and,  ordinarily,  the  question  may  be 
fully  litigated  and  settled  in  such  an  action.  It  has  been  said  to 
be  sure  that  a  court  of  law  can  give  no  adequate  relief  in  cases  of 
boundary.  It  was  declared  in  the  decision  of  a  case  in  the  Eng- 
lish Court  of  Exchequer,  many  years  ago,  that  a  court  of  law  "  has 
no  power  to  grant  a  commission  to  set  out  boundaries ;  it  has  no 
power  to  establish  old  boundaries,  to  direct  intermingled  lands  to 
be  separated,  or  an  equivalent  set  out,  and  old  inclosures  to  be 
restored  ;  it  can  only  direct  possession  to  be  given  after  the  land 
in  dispute  is  recovered  in  an  action  of  ejectment"  {Attorney- Gene- 
ral V.  St.  Aiihin,  Wightwich's  R.,  229).  All  this  is  true ;  and  it 
is  also  true,  as  stated  in  an  earlier  case  in  the  same  court,  that  an 
ejectment  does  not  ascertain  by  metes  and  bounds ;  and,  therefore, 
if  a  plaintiff  succeed  in  an  action  of  ejectment,  brought  to  recover 
possession  of  freeholds  which  have  been  mixed  with  copyholds, 
he  will  not  be  allowed  to  take  execution  on  any  part  of  the  pro- 
perty he  pleases  {Ilardcastle  v.  Shafter,  1  Anstrxdlier'' s  R.,  184). 
This  is  all  true  ;  but  the  action  determines  the  right  to  the  posses- 
sion of  the  premises  in  question,  and  the  verdict  and  judgment  in 
the  case,  if  in  favor  of  the  plaintilf,  must  describe  the  jiremises 
with  such  certainty  as  that  the  possession  can  be  rendered.     It  is 


254  LAW  OF  BOUxXDARIES. 

obvious,  therefore,  that  the  question  of  boundary  may  be  properly 
adjudicated  in  tlie  action.  So.  also,  actions  of  trespass  are  fre- 
quently brought  to  recover  for  damage  alleged  to  have  been  sus- 
tained by  reason  of  an  adjacent  owner  of  land  cutting  timber,  and 
the  like,  over  what  is  claimed  to  be  the  divisional  line.  In  these 
cases,  if  the  defendant  pleads  title,  the  question  of  boundary  between 
the  parties  is  effectually  litigated  and  settled  by  the  judgment. 

It  may  be  as  well  to  observe,  in  this  connection,  that  agree- 
ments made  in  respect  to  disputed  boundary  lines  are  not  within 
the  statute  of  frauds,  because  they  cannot  be  considered  as  extend- 
ing to  the  title ;  nor  do  they  have  the  operation  of  a  conveyance, 
so  as  to  pass  the  title  from  one  to  another.  The  object  is  not  to 
pass  the  estate,  or  to  make  a  conveyance  and  transfer  to  one  person 
of  lands  which  belong  to  another ;  but  such  agreements  proceed 
npon  the  fact  that  the  true  line  of  se])aration  is  not  only  fairly  and 
truly  in  dispute,  but  that  it  is  also,  to  some  extent,  undefined  and 
unknown.  They  recognize  and  confirm  the  title  of  both  the  con- 
tracting parties  to  the  land,  of  which  they  are  respectively  the 
real  owners,  and  seek  only  to  distinguish  and  place  beyond  the 
reach  of  future  doubt  the  true  line  of  separation  between  them. 
"  To  bring  an  agreement  in  respect  to  lands  within  the  operation  of 
the  statute  of  frauds,  it  must,  in  effect,  create,  grant,  assign,  sur- 
render or  declare  some  interest  or  estate  in  lands,  other  than  a 
lease  for  the  term  of  one  year ;  and  whenever  it  is  designed  to 
have  this  effect  it  must  be  in  writing,  and  subscribed  by  the  party 
granting  or  creating  such  estate  or  interest,  or  it  is  absolutely 
void.  It  has  been  repeatedly  held  that  a  parol  agreement  to  ascer- 
tain and  establish  a  boundary  line  between  the  owners  of  adjoining 
lands,  which  is  in  dispute,  and  in  some  degree  unknown  and 
undefined,  either  directly  by  the  parties  themselves  or  through 
the  medium  of  a  submission  to  the  award  of  others,  is  not  an 
agreement  which  extends  to  the  title,  and  therefore  not  within  the 
provisions  of  the  statute  of  frauds"  {Davis  v.  Townsend^  10  Barh. 
7?.,  333,  346;  and  vide  Sellick  v.  Adams,  15  Johns.  B.,  197; 
Jackson  v.  Eager,  5  Coio.  R.,  383 ;  Robertson  v.  McNeil,  12 
W€7id.  R.,  578,  583).  As  was  well  said  by  a  learned  judge,  who 
delivered  the  opinion  in  a  late  case  decided  by  the  Court  of 
Appeals  of  the  State  of  New  York,  "  it  is  the  policy  of  the  law  to 
allow  parties  to  settle  and  adjust  doubtful  and  disputed  facts 
between  themselves;   and  where  such  matter,  which  before  waa 


DISPUTED  BOUNDARIES,   HOW  SETTLED.  255 

uncertain,  has  been  established  by  agreement  between  tJie  parties, 
upon  good  consideration  passing  between  them,  they  are  not  per- 
mitted afterward  to  deny  it "  (  Voshurgh  v.  Teator,  32  iV.  Y.  12., 
561,  567). 

The  same  doctrine  has  been  recently  laid  down  by  the  Court  of 
Appeals  of  tlie  State  of  Kentucky,  in  a  case  wherein  it  was  held 
that  an  oral  agreement  fixing  a  dividing  line  between  adjoining 
lands  of  antagonist  parties,  not  being  within  the  statute  of  frauds 
and  perjuries,  may  be  enforced  in  equity  {Jajnison  v.  Petit,  6 
Bush's  R..,  669).  And  the  Supreme  Court  of  Michigan  has  quite 
recently  held  to  a  similar  doctrine,  declaring  that  a  parol  agree- 
ment, long  acqtdesced  in,  to  settle  a  boundary  between  adjoining 
proprietors,  being  the  result  of  an  honest  attempt  to  fix  the  true 
boundary,  and  according  to  which  they  have  actually  occupied, 
will  be  held  good  in  an  action  at  law,  although  the  time  has  not 
been  sufiicient  to  establish  an  adverse  possession.  It  appeared  in 
the  case  that  it  was  a  question  of  doubt  and  uncertainty  where  the 
boundary  was;  and  on  that  ground  the  court  held  that  it  was 
competent  and  lawful  for  the  parties  in  interest  to  locate  the 
boundary  line ;  and  having  done  so,  and  acquiesced  therein  for 
more  than  nineteen  years,  that  the  same  was  binding  upon  them 
and  their  grantees  {Smith  v.  Hamilton,  20  Mich.  R.,  433;  *S'.  C, 
4  Am.  R.,  398). 

The  Supreme  Court  of  the  State  of  New  York  has  recently 
decided  that,  under  certain  circumstances,  the  parties  would  be 
bound  by  a  parol  agreement  fixing  and  settling  a  disputed  bound- 
ary line,  upon  the  principle  of  equitable  estoppel,  as  where,  upon 
the  strength  of  such  agreement,  valuable  and  expensive  improve- 
ments have  been  made  by  one,  with  the  knowledge  of  the  other 
party  to  the  arrangement  {Corkhill  v.  Landers,  44  Barh.  R.,  218). 
And  the  Supreme  Courts  of  Pennsylvania  and  Missouri  have 
recently  decided  the  broad  ground,  that  a  parol  agreement  between 
adjoining  owners  of  land  as  to  boundary  is  not  within  the  statute 
of  frauds,  requiring  agreements  in  relation  to  real  estate  to  be  in 
writing  [Vide  Kellum  v.  Smith,  65  Penn.  R.,  86;  Kincaid  v. 
Dormey,  47  Mo.  R.,  337). 

And  in  an  early  case,  decided  by  the  English  Court  of  Chancery, 
Lord  Hardwicke  said  that  a  settlement  of  boundaries  was  not  an 
alienation  ;  because,  if  fairly  made,  without  collusion,  the  bounda- 
ries so  settled  are  presumed  to  be  the  true  ancient  limits  {Penr, 


25G  LAW   OF  BOUNDARIES. 

V,  Lord  Baltimore,  1  Vesey,  Sen.,  i?.,  44^,  446).  Brt  unless  the 
bonndrti'j  line  between  the  parties  be  in  good  faith  in  dispute  and 
doubt,  a  parol  agreement  will  not  of  itself  affect  the  true  title  to 
the  premises ;  as  it  would  be  wholly  inoperative  and  void  under 
the  statute  of  frauds  {Terry  v.  Chandler,  16  N.  Y.  12.,  354). 


CHAPTER  XXI. 

EEMEDIES  AND  PROCEEDINGS   TO   DETERMINE   UNSETTLED    BOUNDARIES 

IN  A  COURT  OF  EQUITY JURISDICTION    IN    SUCH  CASES CASES  IN 

WHICH  JURISDICTION  HAS  BEEN  ENTERTAINED. 

Notwithstanding  most  cases  of  disputed  boundary  between 
the  lands  of  adjacent  owners  are  disposed  of  in  a  court  of  la\v,  or 
by  proceedings  provided  by  statute,  there  are  cases  in  which  no 
adequate  remedy  is  provided  except  in  a  court  of  equity.  Where 
such  cases  exist,  the  aid  of  a  court  of  equity  may  always  be 
invoked.  The  origin  of  the  jurisdiction  of  the  Court  of  Chancery, 
however,  in  cases  of  boundary,  is  involved  in  much  obscurity. 
The  probable  origin  of  it  is  thus  stated  by  Sir  William  Grant,  in 
an  early  case  before  the  High  Court  of  Chancery  of  England : 
"  There  are  two  writs  in  the  register  concerning  the  adjustment 
of  controverted  boundaries,  from  one  of  which  it  is  probable  that 
the  exercise  of  the  jurisdiction  of  the  Court  of  Chancery  took  its 
commencement.  The  iirst  is  the  writ  de  7r(tionabilihus  divisis  ; 
the   other,   the  writ  de  j^^^^CLf^^^ulatione  faclenda.^     Both  Lord 

*  The  writ  de  rntionahilibus  was  in  its  nature  a  writ  of  right,  formerly  known 
in  tlie  English  practice,  but  now  abolished  by  act  of  Parliament,  and  lay  pro- 
perly where  two  men  had  lands  in  divers  towns  or  hamlets,  so  that  the  one  was 
seised  of  the  land  in  the  one  town  or  hamlet,  and  the  other  of  the  land  in  the 
other  town  or  hamlet  by  himself,  and  tliey  did  not  know  the  bounds  of  the 
towns  or  liamlets,  which  was  the  land  of  one  and  which  was  the  land  of  the 
other.  Then  to  set  the  bounds  in  certain,  this  writ  lay  for  the  one  against  the 
other. 

The  writ  de  perambulatume  faciendd  was  another  writ  under  the  same  prac- 
tice, now  also  abolished  by  act  of  Parliament,  and  lay  where  parties  were  in 
doubt  of  the  bounds  of  their  lordships  or  of  their  towns  ;  in  which  case  they 
by  assent  might  have  sued  out  this  writ,  direc',ed  unto  the  sheriff,  to  make  the 
perambulation,  and  to  set  the  boundaries  and  limits  between  them  in  certainty. 
Such  commission  was  oftentimes  granted  to  make  perambulation  of  three  or 
four  counties,  where  there  was  any  doubt  about  the  bounds  and  liraits  thereof, 
and  this  perambulation  made  by  assent  bound  all  the  parties  and  their  heirs 
{Vide  FitzherberVs  Natura  Brevimn,  128,  183). 


DISPUTED   BOUyDARIES,    HOW  SETTLED.  257 

Nortliington  and  Lord  Tliurlow,  without  referring  to  this  writ  oi 
commission  as  tlie  origin  of  the  jurisdiction  of  the  court,  have  yet 
expressed  an  opinion  that  consent  was  the  ground  on  which  it 
had  been  at  first  exercised.  The  next  step  would  probably  be  to 
grant  the  commission  on  the  application  of  one  party  who  showed 
an  equitable  ground  for  obtaining  it,  such  as  that  a  tenant  or  copy- 
holder had  destroyed  or  not  preserved  the  boundaries  between  his 
own  property  and  that  of  his  lessor  or  lord,  and  to  its  exercise  on 
such  an  equitable  ground  no  objection  has  ever  been  made  "  {Speer 
V.  Crawler,  2  Mer'ivaleh  R.,  410), 

Mr.  Justice  Story,  in  referring  to  these  remarks  of  Sir  William 
Grant,  says  :  "  This  account  of  the  origin  of  the  chancery  juris- 
diction seems  highly  probable  in  itself;  but,  however  satisfactory 
it  may  seem,  it  can  scarcely  be  said  to  afford  more  than  a  reason- 
able conjecture,  and  is  not  a  conclusive  proof  that  such  was  the 
actual  origin.  In  truth,  the  recent  discoveries  made  of  the  actuali 
exercise  of  chancer}^  jurisdiction  in  early  times,  as  disclosed  in  the 
Report  of  the  Parliamentary  Commissioners,  already  referred  to. 
in  a  former  part  of  tliese  Commentaries,  are  sufficient  to  teach  us 
to  rely  with  a  subdued  confidence  upon  all  such  conjectural  sources 
of  jurisdiction.  It  is  very  certain  that,  in  some  cases,  the  Court 
of  Chancei'y  has  granted  commissions,  or  directed  issues,  on  no 
other  apparent  ground  than  that  the  boundaries  of  manors  were 
in  controversy  {See  LetherUe?'  v.  Castlemam,  1  Dlcl^.  R.,  46;  S. 
C,  2  Eq.  Abridff.,  161 ;  Sel.  Cas.  Ch.,  60  ;  Metcalfe  v.  BeckwHK 
2  P.  Will.^  376).  And  Lord  Northington  seems  to  have  assigned 
a  different  origin  to  the  jurisdiction  from  that  already  suggested 
upon  one  important  occasion,  at  least,  namely,  that  parties  origin- 
ally came  into  the  court  for  relief,  in  cases  of  confusion  of 
boundaries,  under  the  equity  of  preventing  multiplicity  of  suits" 
(1  Story's  Eq.  Jar.,  §  613). 

Nothwithstanding  the  abolition  of  the  two  writs  before  meur 
tioned  by  the  English  Parliament,  the  Court  of  Chancery,  or  a. 
court  of  equity,  has  jurisdiction,  both  in  England  and  in  thi*' 
country,  in  certain  cases  of  disputed  or  lost  boundaries  ;,  especi- 
ally when  the  ordinary  remedy  at  law  is  insufficient  to  accom- 
plish the  object  of  settling  the  matter  between  the  pai'ties.  Whei'e' 
the  parties  have  a  complete  remedy  at  law,  of  course  there  is  nc 
occasion  for  the  interference  of  a  court  of  equity,  and  such  court 
will  not  take  jurisdiction  to  settle  the  boundaries  of  land,  unlese 
33 


258  LAW  OF  BOLWDAEIES. 

some  equity  is  superinduced  by  act  of  the  parties.  An  early  case 
in  the  High  Court  of  Chancery  of  England  contains  some  very 
important  rules,  which  guide  the  courts  in  cases  of  disputed 
boundary,  and  the  same  may  very  properly  be  referred  to. 

The  defendants  were  the  proprietors  of  the  manor  of  Epping, 
and  also  of  the  freehold  of  certain  lands  adjoining  to  it,  lying  in 
the  manor  of  Waltham ;  the  boundary  line  of  the  two  manors 
passed  through  the  defendant's  park.  The  bill  alleged  that  the 
defendants  had  cut  down  and  destroyed  the  boundary  marks 
between  the  said  manors,  and  prayed  for  a  commission  to  set  out 
and  fix  the  boundaries  between  them.  Lord  Keeper  Henley  said  : 
"  I  was  desirous  that  some  precedent  should  be  produced  to  show 
me  that  this  court  could  entertain  a  bill  of  this  nature,  to  settle 
the  boundaries  of  an  incorporeal  inheritance,  but  none  such  has 
been  produced.  All  the  cases  where  the  courts  have  entertained 
bills  for  establishing  boundaries  have  been  where  soil  itself  was 
in  question,  or  where  there  might  have  been  a  multiplicity  of 
suits.  The  court  has,  in  my  opinion,  no  power  to  fix  the  boundaries 
of  legal  estates,  unless  some  equity  is  superinduced  by  the  act  of 
the  parties,  as  some  particular  of  fraud  or  confusion,  where  one 
party  has  ploughed  too  near  the  other  or  the  like ;  nor  has  the 
court  a  power  to  issue  commissions  as  of  course,  as  here  prayed  " 
(  WaJce  V.  Co7njers,  1  Men's  B.,  331  ;  S.  C,  2  Cox'  E.,  360).  The 
bill  in  this  case  was  filed  for  relief  in  a  case  of  boundaries  of 
incorporeal  hereditaments,  and  the  court  held  a  commission  would 
not  be  issued  in  such  a  case,  and  therefore  the  bill  was  dismissed ; 
but  the  Lord  Keeper  suggested  very  clearly  the  cases  in  which 
the  court  would  entertain  a  bill  for  establishing  boundaries,  where 
the  soil  itself  was  in  question. 

In  a  much  later  case  before  the  same  court,  hereinbefore  referred 
to,  Sir  William  Grant  observed :  "  On  what  principle  can  a  court 
of  equity  interfere  between  two  independent  proprietors,  and 
force  one  of  them  to  have  his  rights  tried  and  detennined  in  any 
other  than  the  ordinary  legal  mode  in  which  questions  of  property 
are  to  be  decided.  In  some  cases,  certainly,  the  court  has  granted 
commissions  or  directed  issues  on  no  other  apparent  ground  than 
that  the  boundaries  of  manors  were  in  controversy.  In  Wake  v. 
Conyers^  however.  Lord  Northington  held  that  it  was  in  the  case 
-of  manors  that  the  exercise  of  the  jurisdiction,  which  (he  says) 
•*  had   been   agreed   of  late,'    was   peculiarly   objectionable.     He 


DISPUTED   BOUNDARIES,   HOW  SETTLED.  259 

refused  either  to  errant  a  commission  or  to  direct  an  issue.  So  did 
Lord  Thiirlow  in  the  case  of  two  parishes  {St.  Luke's  v.  St. 
Leonard's,  2  Ansir.,  395).  In  the  same  case  of  Wake  v.  Conyers, 
Lord  Northington  says  that  in  his  apprehension  this  court  has  sim- 
ply no  jurisdiction  to  settle  the  boundaries  even  of  land,  unless 
some  equity  is  superinduced  by  act  of  the  parties.  I  concur  in 
that  opinion,  and  think  that  the  circumstance  of  a  confusion  of 
boundaries  furnishes,  j9(?^  se,  no  ground  for  the  interposition  of  the 
court.  *  *  *  If  the  ancient  boundaries  of  the  two  manors  be 
really  unknown,  how  are  commissioners  to  ascertain  them,  or  what 
is  to  be  done  if  they  cannot  be  ascertained  ?  Where  it  is  through 
the  defiiult  of  a  tenant  or  copyholder  that  boundaries  are  con- 
fused, the  court  provides,  for  the  case  of  its  being  impossible  to 
ascertain  them,  by  directing  so  much  of  the  defendant's  own  land 
to  be  set  out  as  shall  be  equal  to  the  quantity  originally  granted  or 
leased.  But  because  the  owner  of  a  manor  can  no  longer  find  all 
the  w^astes  that  may  once  have  belonged  to  it,  he  is  not  to  have  the 
deficiency  made  good  out  of  his  neighbor's  estate "  {S^eer  v. 
Craivter,  2  Meriv.  JR.,  410). 

The  cases  alluded  to  in  the  judgment  in  the  case  of  Speer  v. 
Crawter,  in  which  the  court  had  taken  upon  itself  to  issue  a  com- 
mission or  direct  an  issue  for  the  purpose  of  settling  boundaries, 
upon  no  other  apparent  ground  than  that  the  boundaries  were  con- 
fused, without  any  equitable  circumstances  being  shown,  were 
several  in  number,  but  the  following  only  are  referred  to  as  exam- 
ples :  Norris  v.  Le  Neve,  Robinson  v.  Hodgson,  Clifton  v.  Gwijnne 
(cited  in  Godfrey  v.  Littel,  Tamlyn,  230,  234) ;  and  vide  Hunt  v. 
White,  Seton's  Records  in  Equity,  95.  In  one  of  the  cases  cited 
by  Mr.  Justice  Story  in  the  extract  quoted  from  his  work  on 
Equity  Jurisprudence,  the  bill  was  brought  to  settle  the  boundaries 
of  the  manor  of  D.  and  the  manor  of  S.,  of  which  the  plaintiff 
and  defendant  respectively  were  lords.  The  court  ordered  that 
the  parties  should  give  a  note  to  each  other  of  their  boundaries, 
and  that  the  matter  should  be  tried  in  a  feigned  issue  {Metcalfe  v. 
Beckioith,  2  P.  Will.  R.,  376).  And  it  appears,  from  an  author- 
ity cited  in  Mr.  Hunt's  little  work  on  boundaries  and  fences,  that 
in  Ireland  a  different  rule  prevails  from  that  adopted  in  England 
with  respect  to  showing  equitable  circumstances  t©  justify  the 
interference  of  the  court.  There  it  has  been  held  that  mere  con- 
fusion of  boundaries  \^,  per  se,  sufficient  to  warrant  the  interferenco 


260  L-'^f^''  OF  BOUNDARIES. 

of  a  court  of  equity  in  the  case,  and  the  issuing  of  a  commission 
(1  Furlong''s  Landlord  and-  Tenant.,  706  ;  hut  vide  OLIara  v. 
Stra7ige,  11  Irish  Eq.  B.,  262;  and  Fitzgerald  v.  Lord  Nor- 
l)ury.,  cited  in  1  Jones,  557). 

A  number  of  cases  are  cited  by  Mr.  Hunt,  in  the  work  men- 
tioned, to  illustrate  the  principles  upon  which  commissions  to  set- 
tle boundaries  are  issued  at  the  present  day  by  the  Court  of 
Equity  in  England,  where  equitable  circumstances  are  shown  call- 
ing for  its  interference,  some  of  which  will  be  referred  to  here. 
A  case  before  the  High  Court  of  Chancery,  200  years  ago,  was 
where  the  suit  was  brought  for  the  discovery  of  the  metes  and 
bounds  of  four  acres  of  land  belonging  to  the  plaintiff,  which  was 
mixed  with  the  defendant's  land,  by  ploughing  and  other  means, 
so  that  the  plaintiff's  and  defendant's  land  could  not  be  dis- 
tinguished. The  court  granted  a  commission  to  set  out  the  metes 
and  bounds,  and  the  yearly  value  thereof;  and  how  long  the 
defendant  had  held  the  same,  for  M'hich  he  was  to  pay  the  plain- 
tiflt'  {Boteler  v.  Spelman,  1  FincJCs  R.,  96  ;  and  vide  Latherlier 
V.  Castlemain,  1  Dichsn's  i?.,  46 ;  Select  Chancery  Cases,  60). 

A  case  before  the  same  distinguished  court,  within  the  last 
thirty  years,  was  where  the  bill  stated  a  system  of  gradual 
encroachment  on  the  part  of  the  defendant,  the  filling  up  of  a 
ditch,  and  obliteration  of  the  boundaries;  and,  further,  the  neces- 
sity, if  the  court  should  not  interfere,  of  bringing  a  great  number 
of  actions  against  different  parties  in  order  to  fix  the  boundaries 
and  establish  the  plaintiff's  right.  The  court  held  that  the  bill 
disclosed  sufficient  ground  for  a  commission  to  issue,  although  it 
appears  that  the  case  turned  on  another  point  {The  Marquis  of 
Bute  V.  The  Glamorganshire  Canal  Company,  1  Phillipi  R., 
681).  And  in  a  much  earlier  case,  a  lord  of  a  manor  filed  a  bill 
against  more  than  thirty  tenants  of  a  manor,  freeholders,  copy- 
holders and  leaseholders,  who  owed  rents  to  the  lord,  but  had 
confused  the  boundaries  of  their  several  tenements,  praying  a 
commission  to  ascertain  the  boundaries.  It  was  objected  at  the 
hearing  that  the  suit  was  improper,  as  it  brought  before  the  court 
many  parties  having  distinct  interests;  but  it  was  answered  that 
the  lord  claimed  one  general  right,  for  the  assertion  of  which  it 
was  necessary  to  ascertain  the  several  tenants.  The  court  took 
this  latter  view,  and  granted  a  decree  accordingly  {Magdalen  Col- 


DISPUTED   BOUNDARIES,    UOW  SETTLED.  201 

lege  v.  Athill,  Mitford's  E<piity  Pleadings,  183  ;  and  vide  Whaley 
V.  Dawson,  2  Schoales'  <&  Lefroifs  R.,  367,  370). 

Ill  respect  to  the  relief  in  cases  where  the  lands  of  a  cestui  q\t6 
trnst  have  been  confused  with  those  of  the  trustee,  a  case  of  this 
nature   was   before   the   High    Court  of    Chancery,   wherein    it 
appeared  that  the  defendant  was  in  possession  of  lands,  both  free- 
hold and  copyhold,  which  were  intermixed  with  others  in  his 
possession  devised  to  a  charity.     The  court  granted  a  commission 
to   distinguish   and  set  out  the  charity  lands  from  those  of  the 
defendant  {The  Attorney-General  v.  Bovnjn,  5  Vesey's  It,  300). 
And  it  seems  that  copyholders  and  leaseholders  are  equally  under 
an  obligation  to  preserve  the  boundaries  of  the  property  of  which 
they  are  tenants.*     In  respect  to  relief  in  copyhold  estates,  in  one 
ease  before  the  High  Court  of  Chancery,  the  plaintiff'  was  lord  of 
the  manor  of  W.     The  defendant  and  his  ancestors  had  been  pos- 
sessed for  many  years  past  of  copyhold  premises  situate  in  the 
manor,  some  being  confounded  and  some  unconfounded  copyholds  ; 
and  he  was  also  possessed  of  and  entitled  to  freehold  lands  in  the 
said  manor.     The  boundaries  between  the  different  estates  having 
become  confused,  a  bill  was  filed  for  a  commission  to  ascertain 
them.     In  rendering  his  decision,  Lord  Eldon  said:   "It  is  the 
duty  of  the  tenant  to  keep  the   boundaries.     The   confusion   of 
boundaries  does  not  infer  any  negligence  on  the  part  of  the  lord, 
fur  the  tenant  is  in  possession  of  the  land."     And  he  directed  a 
commission    to   issue   to    distinguish   the  copyhold  lands  in   the 
manor  from  the  freehold   lands,  and  the  unconfounded  from  the 
confounded  copyholds,  and  to  ascertain  and  set  out  the  bounda- 
ries ;  and  if  they  could  not  be  distinguished  to  set  out  lands  of  the 
tenant  of  equal  value  {The  Buke  of  Leeds  v.  Earl  of  Strafford,  4 
Vesey's  E.,  180).     And  in  another  case  a  bill  was  filed  by  a  lord 
of  a  manor  praying  for  a  commission  to  ascertain  boundaries  of 
copyhold  lands,  which  had  been  fraudulently  intermixed  with 
freeholds;  and  an  issue  was  directed  to  try  what  copyhold  lands 

*  In  England  it  appears  that  a  copyholder,  who  removes  or  contuses  land- 
marks and  boundaries,  or  who  pulls  down  an  ancient  inclosure,  or  incloses 
where  there  were  no  fences  before,  incurs  a  forfeiture  (1  Watkinson  Copyholders, 
405).  And  by  late  acts  of  Parliament,  powers  are  given  of  settling  disputed 
boundaries  of  manors  and  lands  in  cases  arising  under  these  acts  {Vide  4  and  5 
Vict.,  chap.  35,  §  21,  and  15  ami  IG  Viet,  chap.  51,  |  24).  It  has  been  held  that 
conditions  relating  to  the  fencing  of  copyhold  property  are  discharged  by  eufrau 
chisement  {Brabant  v.  Wilson,  G  Best  <£•  Smith's  It.,  979). 


2(32  LAW  OF  BOUNDARIES. 

•tt-ere  in  the  possession  of  the  defendant.  On  appeal,  however, 
this  decree  was  reversed,  and  a  commission  was  directed  to  inquire 
into  what  copyhold  and  freehold  lands  were  in  the  possession  of 
the  respondents,  with  liberty  for  the  appellant  to  inspect  all  neces- 
sary deeds,  court  rolls,  writings  and  other  necessary  evidence 
{Rous  V.  Barker,  4  Brown^s  P.  C,  660 ;  vide  Clayton  v.  Cookes, 
2  At'kyns'  P.,  449  ;  Wi7ith  v.  Carpenter,  Finches  E.,  462  ;  Daven- 
port V.  Bromley,  Ih.,  17 ;  Pickering  v.  Kimjyton,  5  Car.,  2  ;  Tot- 
hilVs  P.,  101 ;  Zord  Ahergavenny  v.  Thomas,  Wesfs  P.,  649). 

With  reference  to  the  liability  of  a  leaseholder  to  preserve  his 
boundaries,  and,  as  a  consequence,  the  jurisdiction  of  a  court  of 
equity  in  such  cases,  it  was  said  by  Lord  Eldon,  in  a  case  before 
the  High  Court  of  Chancery,  that  it  had  long  been  settled  that  a 
tenant  contracts,  amongst  other  obligations  resulting  from  the 
relation  of  landlord  and  tenant,  an  obligation  to  keep  distinct 
from  his  own  property  during  his  tenancy,  and  to  leave  clearly 
distinct  at  the  end  of  it  his  landlord's  property,  not  in  any  way 
confounded  with  his  own ;  and  he  observed :  "  There  is,  there- 
fore, a  common  equity  that  a  tenant,  for  his  own  convenience,  in 
order  to  make  the  most  of  it  during  his  tenancy,  is  bound,  at  the 
end  of  the  term,  to  render  up  specifically  the  landlord's  kind  ;  and 
if  he  cannot,  that  a  commission  shall  issue  from  a  court  of  equity 
to  inquire  what  were  the  lands  of  the  landlord,  the  court  taking 
care,  to  the  intent  that  the  tenant  may  discharge  his  obligation,  to 
do  what  is  right  as  to  the  possession  in  the  meantime ;  and  if  the 
tenant  has  so  confounded  the  boundaries,  by  subdividing  the  land 
by  hedges  and  stones,  and  destroying  the  metes  and  bounds, 
that  the  landlord's  land  cannot  be  ascertained,  the  court  will 
inquire  what  Avas  the  value  of  the  landlord's  estate,  valued  fairl3\ 
but  to  the  utmost  as  against  tlie  tenant,  who  has  himself  destroyed 
the  possibility  of  the  landlord  having  his  own  "  {The  Attorney' 
General  v.  FuUerton,  2  Yesey  &  Beanie's  P.,  263). 

So  in  another  case  before  the  same  court,  the  same  distinguished 
judge  said  that  it  was  a  clearly -established  duty  on  the  part  of  a 
tenant  to  keep  the  boundaries  of  the  demised  property  distinct, 
and  that,  if  the  tenant  confused  his  landlord's  property  with  his 
own,  equity  would  aid  the  reversioner  and  give  him  as  much  land 
{Aston  V.  Lord  Exeter,  6  Vesey's  P.,  292).  And  in  a  still  later 
case,  Lord  Eklon  expressed  liimself  to  the  same  effect  {Griersond 
V.  Eyre,  9  Tesey's  P.,  345  ;  vide   Glynn  v.  Scowen,  Finchh  P., 


DISPUTED   BOUXDAEIES,    HOW  SETTLED.  263 

239  •   WnUs  V.  ParJcinson,  2  3Ierw.  JL,  507  ;  Godfrey  v.  LiUdl 
R  &  My.  i?.,  59  ;  S.  C,  2  ib.,  630).     And  it  has  quite  recently 
be"eu  held  in  the  High    Court  of  Chancery,  before  Su-  W.lham 
Pac^e  Wood,  vice-chancellor,  that  relief  will  be  granted  at  the  suit 
of  U)e   landlord,  not   only  against   the    tenant   hin.selt,  but   also 
a.rainst  all  persons  claiming  under  him,  either  as  volunteers  or  as 
mirchasers  with  notice ;  but  it  wa.  declared  that  it  must  be  shown 
Ihat  the  tenant  was  in  possession  of  the  specihc  land  ongina  ly 
aemM{AttorneyGeneral  v.  Stephens,  I  Aay  d.  Johnsm  s  L 
794.  ^    C    6  De  Gex,  Macnaughton  and  Gordons  A.,  m;  ^• 
S   k  L  e/.,  ch.  694,  and  25  ih.,  888).     And  the  doctrine  wa3  laid 
down  by  Yice-Chancellor  Wood,  in  the  same  case,  that  a  tenant 
will   not   be   relieved   from  liability,  in  respect  of  confusion   ot 
boundarv,  by  the  tact  that  the  boundary  was  contused  by  some 
previous'  holder  of  the  lands,  between  whom  and  himselt  there 
exists  no  privity  of  estate ;  for  it  is  the  tenant's  duty  to  have  the 
landlord's*  property  at  all  times  distinguishable  Irom  Ins   own 
when   the   landlord  requires   it   {Attorney- General    v    Stephens 
supra;    and  vide   Attorney-General   v.  Fullerton     2  Vesey   & 
Beames   R.,    263).      In  like   manner  it   ^^^s  declared  by  Lord 
Eldon   to   the   effect  that  "each  of  several   co-lessees   is   unle 
an  obligation  not  only  not  to  intermix  lands,  but  not  to  suffer  that 
intermixture  by  his  co-lessees.     They  have  an  intei^st  ^^^^^^ 
of  their  landlord,  and  that  interest  is  connected  with  a  dut>  ^  Inch 
rests  upon  them  all,  that  each  and  every  of  them  sluUl  not  bring 
nto  difficulty  the   title   to   the   lands "  (IH/Z..  v.  Parku-onl 
Sy.anst.n>s  R.,  9;  S.  C,  2  Meri..  R..  507).     In  all  such  cas 
between  landlords  and  tenants,  it  seems  the  court  will  grant  the 
landlord  a  commission  instead  of  driving  him  to  an  ejectment,  in 
which  the  tenant's  possession  gives  him  a  manifest  advantage  (  \  ide 
1  Ficrlonffs  Landlord  and  Tenant,  269). 

These  cases,  which  have  been  considered  m  the  Enghsh  cou.t. 
are  most  of  them  of  an  ancient  date;  but  they  are  all  recognized 
as  authority  in  England  at  the  present  day,  and  the  current  piac- 
tice  in  England  isin  accordance  with  the  rules  laid  down  m  such 
cases.  And  it  may  be  affirmed  that  a  similar  practice  prevails  in 
the  American  States.  In  November,  1872,  the  Supreme  Cuuit  of 
the  State  of  New  York,  at  a  Special  Term,  appointed  a  commis- 
sion  of  freeholders  of  the  county  to  find,  ascertain,  hx  and  estab- 
lish the  boundary  lines  of  certain  lands  in  dispute,  by  metes  and 


264  LAW   OF  BOUyDARIES. 

bounds,  and  to  set  corners  and  monuments  to  designate  the  cor- 
ners and  lines  of  the  lands.  The  case  before  the  court  was  this: 
Each  party  to  the  action  was  owner  in  fee  of  one-fourth  part 
of  over  1,200  acres  of  land,  of  an  uneven  and  hilly  surface,  and 
mostly  wild  and  covered  with  timber ;  and  the  boundary  or  divi- 
sion lines  between  the  several  owners  had  never  been  ascertained 
or  fixed  by  any  accurate  survej',  nor  had  corners  been  set,  or 
monuments  erected,  or  trees  been  marked  to  designate  either  of 
tlie  corners  or  lines  of  the  land  of  either  party ;  neither  party 
could,  with  the  aid  of  a  surveyor,  ascertain  with  reasonable 
accuracy,  except  by  chance,  the  boundary  or  division  lines  between 
his  land  and  that  of  the  other  parties;  and  the  boundary  lines  of 
no  one  of  the  parties  could  be  determined  and  fixed  without  ascer- 
taining the  location  of  the  boundary  lines,  or  some  of  them,  of  each 
of  the  other  parties.  The  court  held  that  these  boundary  lines  ought 
to  be  ascertained,  fixed  and  designated,  so  that  the  parties  would  be 
bound  by  the  locations  thereof,  and  know  where  they  were.  The 
doctrine  was  laid  down,  that  a  confusion  of  boundaries  of  lands 
exists  M'hen,  by  the  deeds  thereof,  or  the  acts  of  the  owners  or 
occupants,  the  boundaries  cannot  be  ascertained  with  reasonable 
certainty  by  one  party  alone,  or  except  by  the  judgment  or 
opinions  of  men,  after  an  examination  of  the  deeds  and  the  pre- 
mises, with  a  surveyor,  aided,  perhaps,  by  the  examination  of 
witnesses.  It  Avas  thought  the  case  came  within  the  rule,  and  jus- 
tified the  appointment  of  connnissioners,  and  they  were  accord- 
ingly appointed,  and  the  doctrine  was  declared,  that  an  action  in 
ec[uity  will  lie,  to  ascertain  and  fix  the  boundary  lines  between  the 
lands  of  the  parties,  whenever  there  are  peculiar  equities  attach- 
ing themselves  to  the  controversy,  or  where  it  will  prevent  a 
multiplicity  of  suits.     {Boyd  v.  Doivie,  65  Barh.  R.,  237.) 

In  a  late  case  before  the  Court  of  Chancery  of  the  State 
of  New  Jersey,  it  was  held  that  courts  of  ec[uity  have  juris- 
diction, in  cases  of  confusion  of  boundaries,  to  establish 
lines  ;  and  although  they  never  entertain  a  simple  suit  to  fix 
boundaries  between  individuals  where  courts  of  law  have  jurisdic- 
tion, yet,  where  the  question  is  connected  with  matters  that 
recpiire  the  interference  of  equity,  as  where  a  defendant  has  threat- 
ened, and  has  served  a  formal  written  notice,  that  he  intends  to 
remove  ten  inches  of  the  end  wall  of  the  complainant's  dwelling, 
which  the  defendant  alleges  is  upon  his  laud,  a  court  of  equity, 


DISPUTED   BOUNDARIES,   HOW  SETTLED.  265 

it  was  held,  will,  to  prevent  imiltiplicity  of  suits,  entertain  juris- 
diction and  settle  the  boundaries,  in  order  to  deteiniine  whether 
the  complainant  is  entitled  to  the  continuance  of  its  protection  by 
injunction  {De  Veney  v.  Gallagher,  20  N.  J.  Fq.  R.,  33).  This 
is  a  late  and  well  considered  case,  and  settles  the  principle  sub- 
stantially in  accordance  with  the  English  authorities.  Other 
American  cases  will  be  presently  referred  to  in  which  the  doctrine 
is  recognized,  although  the  cases  themselves  may  have  been  held 
not  to  come  within  the  jurisdiction  of  a  court  of  ecpiity.  Of 
course,  when  a  mistake  has  occurred  in  a  conveyance  in  respect  to 
the  boundaries  of  the  land  intended  to  be  described,  a  court  of 
equity  is  the  proper  tribunal  in  which  to  correct  the  mistake. 
For  example,  in  a  case  before  the  Supreme  Court  of  New  Hamp- 
shire, it  appeared  that  a  deed  erroneously,  and  contrary  to  the 
intention  of  both  parties,  stated  a  boundary  line  as  running  north, 
twenty  degrees  east,  instead  of  north,  twenty  degrees  wcsi.  The 
court  held  that  the  error  could  be  corrected  in  a  suit  against  par- 
ties deraigning  title  through  the  grantor,  they  all  havir^g  taken 
notice  of  the  error,  but  it  would  have  to  be  done  by  a  proceeding 
in  equity.  And  it  M'as  held  in  the  case,  that  one  notified  after  he 
had  contracted  to  buy  the  land,  but  before  receiving  the  deed, 
would  not  be  protected  as  a  purchaser  witliout  notice  {Prescott  v. 
Hawkins,  16  N.  II.  It.,  122).  And  it  has  been  recently  held,  by 
the  Supreme  Court  of  Texas,  that  where  a  suit  is  brought  by  one 
of  two  owners  of  contiguous  land,  to  compel  the  other  to  permit 
him  to  run  the  dividing  line,  and  it  appears  that  the  line  had  been 
run  by  former  owners,  the  right  to  have  a  divisional  line  run  and 
judicially  established,  if  necessary,  rests  on  the  same  principle  as 
a  right  to  an  action  for  specific  performance ;  and.  that,  if  the  line 
had  been  run  by  former  owners,  and  could  be  in  part  discovered, 
such  action  could  not  be  maintained  {George  v.  Thomas,  16  Texas 
12.,  74). 

In  a  case  decided  by  the  Supreme  Court  of  Connecticut,  and 
referred  to  in  the  preceding  chapter,  it  was  said  that  the  issuing 
of  commissions  to  ascertain  lost  boundaries  was  a  very  ancient 
branch  of  equity  jurisdiction  ;  and  tliat  the  statute  of  Coimecticut, 
conferring  equity  jurisdiction,  was  quite  l)road  enough  to  embrace 
it  {Perry  v.  Pratt,  31  Co7in.  P.,  433).  And  in  a  somewhat  recent 
case  before  the  courts  of  North  Carolina,  where  it  ai>|iearcd  that 
a  mill-race  was  conveyed,  and  afterward  filled  up  and  ploughed 
VA 


2(3(3  LAW  OF  BOUNDARIES. 

over  by  one  wlio  had  an  interest  in  the  land,  the  Supreme  Court 
in  equity  took  jurisdiction  and  granted  relief,  "under  a  well-set- 
tled head  of  equity  jurisdiction  —  confusion  of  boundaries  "  {Mer- 
riman  v.  Russell,  2  Jo7ies  Eq.  7?.,  4T0).  But  in  an  early  Vir- 
ginia case  it  was  declared  that  a  court  of  equity  would  not  enter- 
tain jurisdiction  in  a  boundary  case,  unless  it  appeared  that  the 
plaintiff  had  some  equity  against  the  defendant  claiming  adversely 
to  him  {Stuart  v.  Coulter,  4  Band.  B.,  74 ;  aiid  vide  Dickerson 
V.  StoU,  4  Halst.  Ch.  B.,  294). 

Judge  Willard,  in  his  comprehensive  work  on  Equity  Jurispru- 
dence, says:  "The  relief  which  equity  affords,  in  the  case  of  con- 
fusion of  boundaries,  is  referable  to  the  head  of  accident.  When 
lands  have  become  mixed  or  confounded  without  the  fault  of  the 
plaintiff',  equity  will  appoint  a  commission  to  settle  the  boundaries, 
and,  upon  confirming  the  report,  make  a  proper  decree  between 
the  parties  "  ( Willard's  Eq.  Jur.,  56).  The  only  authority  wdiich 
he  cites  is  the  decision  of  Lord  Chancellor  Hardwicke,  made  in 
1744,  in  Norris  v.  Le  Nem,  3  Ath.  B.,  82,  in  which  commissioners 
had  been  appointed  to  settle  the  boundaries  between  the  parties, 
and  for  separating  freehold  and  copyhold  lands ;  and  the  question 
of  jurisdiction  was  not  referred  to  by  the  lord  chancellor.  It  may 
be  assumed,  therefore,  that  it  was  a  plain  case  of  confusion  of 
boundaries,  in  which  the  jurisdiction  of  the  court  was  not  questioned. 
Bnt  the  doctrine  of  Judge  Willard  is  sustained  by  numerous  English 
authorities,  and  is  not  incon&istent  with  the  case  of  Boyd  v.  Dowie. 

From  the  cases  examined  it  is  very  clear  that,  both  in  England 
and  in  this  country,  courts  of  equity  will  always  take  cognizance 
of  controversies  in  respect  to  boundaries  of  land  whenever  the 
parties  cannot  obtain  substantial  relief  in  a  court  of  law,  or 
wdiere  equitable  circumstances  are  shown,  calling  for  the  interfer- 
ence of  a  court  of  equity;  although,  as  a  rule,  unless  some  statute 
exists  upon  the  subject,  the  existence  of  a  controverted  boundary 
is  not  of  itself  alone  a  ground  for  relief  in  equity.  Other  circum- 
stances must  be  shown  which  seem  to  require  the  interference  of 
the  court.  Whenever  such  circumstances  do  exist,  it  may  be 
observed  that  full  and  actual  possession  is  sufficient  title  to  main- 
tain a  suit  for  settling  boundaries ;  a  strict  title  is  never  entered 
into  in  cases  of  this  kind.  This  was  so  declared  by  Lord  Hard- 
wicke many  years  ago,  and  the  rule  has  not  been  changed  {Penn 
V.  Lord  Baltimore,  1  Yesey,  Sen.,  B.,  444). 


DISPUTED  BOUXDARIES,   HOW  SETTLED.  267 

It  may  also  be  stated  here  tliat  a  court  of  equity  exercises  juris- 
diction in  cases  where  distress  for  rent  has  become  dithcult  or 
impossible  by  reason  of  confusion  of  boundaries,  which  is  more 
common  in  England  than  in  this  country  ( Vide  Mltford's  Eq. 
Pleadings.^  117).  It  was  held  at  an  early  day  in  England  that  if 
a  tenant  of  lands  confounds  the  boundaries  in  order  to  prevent  a 
distress,  the  lord  will  be  entitled  to  a  commission  to  ascertain 
them  {Bouverie  v.  Prentice^  1  Broimi's  C  C,  201).  And  in 
another  case,  where  it  appeared  that,  by  great  length  of  time,  it 
had  become  impossible  to  know  out  of  what  particular  lands 
ancient  quit-rents  were  issuable,  a  court  of  equity  has  exercised  a 
jurisdiction,  and  it  was  declared  that  such  courts  had  constantly, 
on  proof  of  payment  within  a  reasonable  time,  decreed  a  satisfac- 
tion for  all  arrears  of  such  rents  and  payment  of  the  same  for  the 
future  {Diike  of  Bridgewater  v.  Edwards,  6  Browii's  Parlia- 
mentary Cases,  308).  So,  also,  from  an  important  case  before  the 
High  Court  of  Chancery  in  the  time  of  Lord  Hardwicke,  it  appears 
that  "  where  a  man  is  entitled  to  rent  out  of  lands,  and  thi-ough 
process  of  time  the  remedy  at  law  is  lost  or  become  voiy  difhcult, 
the  court  of  equity  will  interpose  and  give  relief,  upon  the  founda- 
tion only  of  payment  of  the  rent  for  a  long  time ;  and  that  the 
court  will  even  go  so  far  as  to  give  relief  where  the  nature  of  the 
rent  (as  there  are  many  kinds  at  law)  is  not  known,  so  as  to  be 
set  forth  ;  but  then  all  the  terre-tenants  of  the  lands  out  of  which 
the  rent  issues  must  be  brought  before  the  court,  in  order  for  the 
court  to  make  a  complete  decree"  {Benson  v.  Baldwin,  1  Atl'iju''s 
P.,  598).  And  it  may  be  added  that  the  fact  of  the  boundaries  of 
the  land  out  of  which  the  rent  issues,  or  the  days  on  which  it  is 
payable,  or  the  nature  of  the  rent,  being  uncertain,  or  other 
grounds  of  relief,  must  be  clearly  stated  in  the  bill ;  or  else  a  land- 
lord might  be  very  vexatious  to  a  tenant,  and  make  him  spend  in 
his  own  necessary  defense  more  than  three  times  the  value  of  the 
rent  {Vide  Holder  v.  Chamhrey,  3  P.  Wms,  P.,  256).  And 
before  relief  can  be  given  to  the  party  entitled  to  the  rent,  it  must 
be  clearly  shown  that  the  tenant  of  the  land  out  of  which  it  issues 
is  in  possession  of  some  part  of  the  land  chargeable  with  the  rent 
{Mayor  of  Basingstoke  v.  Bolton,  1  Drewrfs  P.,  270;  S.  C,  3 
ih.,  50). 

It  may  also  be  suggested  hei-e  that  it  is  a  well-established  rule 
in  equity  that  the  plaintiff  is  entitled  to  compel  the  discovery  of 


268  LAW  OF  BOUyDARIES. 

everything  in  the  possession  of  the  defendant,  M'hether  consisting 
of  facts,  deeds,  papers  or  documents,  which  will  help  the  plaintitf 
mahe  out  his  own  case;  and  that  he  can  only  be  refused  inspec- 
tion of  evidence  which  relates  exclusively  to  the  case  of  the  defend- 
ant. The  like  discovery  may  also  be  compelled  without  the 
trouble  of  filing  a  cross-bill  (  Vide  Ligilhy  v.  Shafto,  33  BeavaiCs 
i?.,  31,  42;  Bolton  v.  Corporation  of  Liverpool,  3  Sim.  ^.,467; 
Llewellyn  v.  Bordeley,  1  Hare's  R.,  527 ;  2  DanielVs  Ch.  Pr., 
1659,  et  seq.,  4:th  ed.  /  Wigrarn  on  Discovery,  15).  It  has  been 
accordingly  held  that,  where  a  party  is  impeded  in  the  recovery 
of  his  property  at  law  merely  by  reason  of  his  inability  to  identity- 
it,  in  consequence  of  confusion  of  boundary  or  from  any  other 
cause,  tlie  court  of  equity  will  assist  him  by  compelling  a  discovery 
of  what  are  the  larms  or  pieces  of  land,  the  names  of  the  tenants, 
and  the  like  {Loiter  v.  liolle,  3  Veseys  B.,  4,  7).  And  where  the 
plaintiff  prayed  for  discovery  of  certain  documents  (consisting  of 
old  surveys,  deeds  and  tlie  like),  which  the  defendant  admitted  to 
Lave  in  his  possession,  in  order  to  find  out  how  the  parcels  and 
boundaries  of  property  in  litigation  were  delineated,  he  was 
allowed  to  see  such  portions  of  the  documents  as  related  to  the 
said  parcels  and  boundaries;  but  was  denied  inspection  of  those 
portions  which  did  not  relate  to  the  subject-uiatter  of  the  suit 
{Jenlins  v.  Bushhy,  35  L.  J.  Eq.,  400).  Where,  however,  the 
boundaries  have  been  confused  by  the  persons  whose  duty  was  to 
preserve  them  and  keep  them  distinct,  such  as  a  copyholder  or 
leaseholder,  he  will  be  obliged  to  produce  any  evidence  he  may 
have  in  his  possession,  which  tends  to  remove  the  difiiculties 
which  he  himself  has  created ;  but  lie  will  not  be  under  this 
necessity,  unless  the  boundaries  cannot  otherwise  be  proved  {South- 
well V.  Thompson,  6  Z.  J.  Ch.,  K  S.,196). 

A  purchaser  of  lands  under  the  description  of  "  partly  freehold 
and  parti}'  leasehold"  is  entitled  to  have  the  boundary  dividing 
the  freehold  from  the  leasehold  defined  hy  reference  to  the  instru- 
ments of  title,  or  shown  to  be  capable  of  being  so  defined  ;  but 
the  circumstance  that  the  property  is  described  in  the  agreement 
as  "  partly  freehold  and  partly  leasehold,"  the  boundaries  distin- 
guishing the  one  from  the  other  not  being  stated,  and  having  not 
hitherto  been  clearly  defined,  is  not  an  objection  to  a  decree  for 
specific  performance.  The  uncertainty  in  the  boundary  or  extent 
of  property,  which  arises  not  from  an  instrument  being  incapable 


DISPUTED  BOUNDARIES,    HOW  SETTLED.  269 

of  leo-al  construction,  but  from  its  not  having  heretoiore  received 
any  such  le^al  construction,  is  no  ground  for  refusing  specihcper- 
fonnance  of  a  contract  to  sell  such  property  {Monro  ^-TayzuS 
Hm^e's  i?.,  51 ;  ^S-.  C,  3  Macnaughton  <&  Gordon  s  A.,  Tl^  ;  ^.  ^^ 
21  Z.  J.  Fq.,  Jy.  S.,  625). 

In  the  time  of  Lord  Chancellor  Hardwicke,  the  High  Couit  of 
Chancery  of  England  took  jurisdiction  of  an  agreement  between 
the  grantees  of  two  provinces  in  America  relating  to  the  settle- 
ment of  disputed  boundary,  founded  on  articles  of  agreemcn 
executed  in  England,  under  seal,  for  mutual  consideration,  and 
decreed  that  such  agreement  be  specifically  performed,  although 
the  crown  only  has  jurisdiction  in  cases  of  this  nature ;  lor  the 
Queen's  courts,  both  of  law  and  equity,  provided  the  parties  to  be 
aifected  by  the  judgment  or  decree  are  within  their  jurisdiction, 
can  take  cognizance  of  and  enforce  an  agreement,  whatever  may 
be  the  subject-matter  of  it  {Fenn  v.  Lord  Baltimore,  1  Vesey, 
Sen.,  B.,  444,  447).     . 


CHAPTER  XXII. 

KEMEDIES  AND  PKOCEEDINGS  IN  EQUITY  TO  ^^^™^^7^^^,^"^^^ 
BOUNDARIES  OF  LAND  —  CEKTAIN  RULES  HELD  TO  APPLY  10  ALL 
CASES  OF  CONFUSION  OF  BOUNDARY  -  CASES  IN  WHICH  EQUITY  JURIS- 
DICTION  HAS  BEEN  DENIED. 

The  courts  have  settled  certain  rules  which  apply  to  all  cases 
of  confusion  of  boundary,  whether  occurring  between  independent 
proprietors  or  between  a  landlord  and  his  tenants ;  for  example, 
ft  was  long  ago  decided  by  the  courts  of  England  that  a  commis- 
sion should  not  issue  to  attain  a  remote  consequential  advantage. 
A  bill  was  brought  by  a  rector  principally  on  account  of  tithes, 
and  to  have  a  commission  to  settle  the  boundaries  ot  the  parish 
and  the  glebe  ;  Macdonald,  C.  B.,  said  :  "  The  plaintiff  here  calls 
upon  the  court  to  grant  a  commission  to  ascertain  the  boundaries 
of  the  parish,  upon  the  presumption  that  all  the  land  which  is 
found  within  these  boundaries  will  be  titheable  to  him.     I  hat  is 
indeed  ^ prima  facie  inference,  but  by  no  means  conclusive,  and 
there  is  no  instance  of  the  court  ever  granting  a  commission  in 


270  LAW  OF  BOUNDARIES. 

order  to  attain  a  remote  consequential  advantage.  It  is  a  juris- 
diction which  the  Courts  of  Equity  have  always  been  very  cautious 
of  exercising"  [Atkins  v.  Hatton^  2  Austr.  B.,  386). 

Another  rule  applying  to  all  cases  of  confusion  of  boundary  is, 
that  the  Court  of  Equity  will  not  grant  relief  unless  it  be  shown 
that,  without  the  assistance  of  the  court,  the  boundaries  cannot  be 
found.  That  is  to  say,  this  is  the  rule  unless,  as  in  some  cases,  a 
different  practice  is  establislied  by  the  statutes  of  the  State.  This 
has  been  substantially  shown  by  cases  heretofore  considered  ;  and 
others  may  be  cited  to  the  same  purpose.  The  doctrine  was  laid 
down  in  an  important  case  in  the  High  Court  of  Chancery  of 
England  during  the  time  of  Lord  Chancellor  Eldon  ;  and  the  case 
contains  such  a  full  and  lucid  exposition  of  the  rules  which  guide 
the  courts  in  boundary  questions  that  it  may,  with  propriety,  be 
cited  at  length.  It  appeared  that  A.  was  entitled  to  the  fee  sim- 
ple in  four  acres  of  land,  part  of  a  field  containing  about  five 
acres ;  the  remaining  one  acre  belonged  to  the  crown,  and  was 
devised  for  a  term  of  ninety-nine  years  to  a  tenant,  whose  interest 
A.  purchased,  and  thus  became  entitled  to  the  possession  of  the 
whole  field.  In  1805  the  lease  terminated,  and  the  defendant 
purchased  the  share  and  interest  of  the  crown  in  the  said  acre  of 
land.  A  yearly  tenant  of  A.,  under  some  misapprehension,  then 
let  the  defendant  into  possession  of  the  whole  field;  and  he  had 
since  continued  to  hold,  refusing  to  set  out  the  portion  of  the  field 
belonging  to  the  plaintiff,  upon  whom  A.'s  interest  had  devolved, 
or  to  make  any  compensation.  There  was  no  evidence  either  that 
the  defendant  had  obtained  possession  of  the  four  acres  impro- 
perly, or  that  A.  or  the  plaintiff  had  ever  acknowledged  him  as 
their  tenant.  The  plaintiff  thereupon  filed  his  bill  to  obtain 
amongst  other  things  a  commission  to  ascertain  boundaries,  and  a 
commission  of  partition. 

Sir  Thomas  Plumer,  master  of  the  rolls,  said  :  "  In  every  bill 
for  a  commission  to  ascertain  boundaries  it  is  first  necessary  to 
show  that,  without  the  assistance  of  the  court,  the  boundaries  can- 
not be  found.  Now,  here  that  is  not  proved  ;  the  answer  admits 
that  the  whole  field  has  been  held  together ;  the  bill  states  that 
there  are  no  marks  and  bounds  to  distinguish  one  part  from  the 
other ;  and  though  there  may  be  none  that  are  visible  and 
apparent  to  the  eye,  yet  it  does  not  follow  that,  by  addressing 
themselves  to  old  people  acquainted  with  the  place,  or  by  examin 


DISPUTED  BOUNDARIES,    HOW  SETTLED.  271 

inc.  the  tenant,  they  might  not  separate  the  two  parts.     The  court 
would  expect  this  to  be  clearly  established  before  .t  would  inter- 
fere     But  if  the  difficulty  of  finding  the  boundaries  were  estab- 
lished, it  is  clear  the  plaintiff  does  not  stand  in  a  predicament 
that  gives  him  a  right  to  apply  lor  a  commission      This  is  a  case 
of  persons   claiming   by    adverse   title  ;  there   is   no   connec  ion 
hetween  them,  to  serve  as  a  foundation  tor  the  court  to  proceed  on 
in  ordering  a  commission.     This  subject  is  very  luminously  con- 
sidered by  the  late  master  of  the  rolls,  in  Speer  v.  Crawter  ;  and 
that  case'has  settled  that  you  nuist  lay  a  foundation  for  tins  species 
of  relief  not  merely  by  showing  that  the  boundaries  are  confused, 
but  that  the  confusion  has  arisen  from  some  misconduct  on  the 
part  of  the  defendant,  or  those  under  whom  he  claims,  of  which 
you  have  a  right  to  complain,  and  which  renders  it  incumbent  on 
him  to  co-operate  in  re-establishing  them.     But  the  court  will  not 
interfere  between    independent    proprietors,  and   conlns.on    ot 
boundaries, per  se,  is  no  giound  to  support  such  a  bill.     Here  the 
crown  and  the  plaintiff  claim  independently  ot  each  otliei",  and 
nothing  is  stated  in  the  bill  but  the  mere  iact  of  the  boiindanes 
beinc.  confused.      The  case  stated  by  the  plaintiff  is,  theretore, 
obviously  open  to  this  fatal  objection.     *     *     -     The  i-emainder 
of  the  prayer  is  for  a  commission  in  the  nature  of  a  writ  ot  parti- 
tion :  but   this  proceeds   from   a   mistaken   view  of  the   subject. 
Partition  can  only  be  between  joint  tenants,  tenants  in  common 
or  coparceners;  "originally   it  was  confined  to  coparceners,  who 
derived  that  name  from  bei.^g  able  to  compel  partition  (1  JnsL, 
2n)      By  the  statute  31  Henry  VHI  it  is  extended  to  tenants  in 
common  and  joint   tenants,  but  the  principle  is  the   unity  and 
entirety  of  possession,  that  each  party  has  an  undivided  interes 
in  and  a  right  over  the  whole,  and  hence  the  plea  of  non  tenet 
insinud  is  a  good  plea  to  a  writ  of  partition,  and    --^  f^  ;    !^, 
necessary  for  them  to  make  conveyances  to  each  other,  aftei  then 
portions  are  set  out.     The    same  rules  that  prevail    at  law  are 
adopted  in  equity,  and  it  is  only  on  the  same  grounds  that  you  can 
apjy  to  this  court.     *     *     *     Here  the  plaintiff  and  the  crown 
claim  by  distinct  and  adverse  titles,  as  independent  owners,  and 
there  can  be  no  partition  between  them.     Partition  is  not  given 
for   any  such   reason  as  confusion  of  boundaries,  but  from  the 
nature  of  the  interest  of  the  parties.     This  part   of  the    .ill  ^s 


272  LAW   OF  BOUXD ARIES. 

quite  as  untenable  as  the  rest"  {Miller  v.  Warringto7i,  1  Jacob  c& 
Walker's  7?.,  484). 

Still,  another  rule  is  that,  in  order  to  obtain  relief  from  a  court 
of  equity  in  cases  of  boundary,  it  is  necessai-y  for  tlie  plaintiff  to 
establish  a  clear  title  to  some  land  in  the  possession  of  the  defend- 
ant. In  support  of  this  proposition  a  leading  case  may  be  refer- 
red to,  decided  by  the  High  Court  of  Chancery  of  England,  where 
a  bill  was  brought  to  ascertain  and  set  out  the  boundaries  of  lands 
belonging  to  the  plaintiff",  under  whom  the  defendant  had  held  as 
lessee  for  a  number  of  years,  on  the  ground  that  the  defendant 
liad,  during  the  lease,  confused  his  own  lands  with  those  of  the 
plaintiff",  so  that  they  could  not  be  distinguished.  It  was  satisfac- 
torily proved  that  part  of  the  land  in  the  possession  of  the  defend- 
ant belonged  to  the  plaintiff.  The  master  of  the  rolls,  Sir  John 
Leach,  said :  ''  It  appears,  by  the  authorities  which  have  been 
referred  to,  that,  to  sustain  a  bill  of  this  natui-e,  it  is  necessary 
that  the  plaintiff  establish  a  clear  title  to  some  land  in  the  posses- 
sion of  the  defendant ;  and,  according  to  the  case  in  Bunbury,  the 
court  will  not  direct  an  issue  to  try  the  title  if  it  be  left  in  doubt 
upon  the  evidence  in  the  cause.  It  has  been  argued  that  the  title 
of  the  plaintiff  must  appear  by  the  admissions  of  the  defendant, 
and  that  it  is  not  enough  that  it  be  established  to  the  satisfaction 
of  the  court  by  the  evidence  in  the  cause.  That  proposition  is  not 
countenanced  either  by  authority  or  by  principle,  and  is  manifestly 
untenable ;  for,  if  such  were  the  rule,  there  never  could  be  a 
decree  for  the  plaintiff  in  a  suit  of  this  nature,  as  no  defendant 
would  admit  the  plaintiff"'s  title.  When  the  court  is  satisfied  with 
the  plaintiff"'s  title,  and  that  he  has  an  equitable  ground  for  the 
assistance  of  this  court,  the  authorities  will  justify  the  court  in 
affording  relief,  either  by  a  commission,  or  by  an  issue,  as  will  best 
advance  the  justice  of  the  particular  case"  {Godfrey  v.  Littel,  1 
Bussell  i&  Mijlne's  R.,  59 ;  S.  C\,  2  E.  i&  My.  B.,  639 ;  a7id  vide 
Chapman  v.  Spencer^  1  Eq.  Ca.  Ahrid.,  163,  A.  21 ;  Lord  Teyn- 
ham  V.  Ilerherf,  1  Atk.  li.,  4S3 ;  Mayor  of  York  v.  P ilkington, 
Jb.,  282  ;  S.  C,  2  ib.,  302  ;  Sayer  v.  Pierce,  1  Ves.  P.,  232).  And 
in  another  late  case  in  England,  before  Yice-Chancellor  Wood, 
the  crown  sought  to  recover  land  alleged  to  have  been  reclaimed 
from  the  sea  by  encroachment  or  purpresture;  the  vice-chancellor 
siiid  that  he  apprehended  tliat  if  the  defendant  admitted  the 
crown's  title  to  the  soil  between  the  then  present  high  and  low- 


DISPUTED  DOUXDARTESy    HOW  SETTLED.  273 

water  mark  (wliicli,  liowever,  was  disputed),  then,  upon  inquiry  as 
to  the  boundary  of  the  sea-shore,  the  onus  would  be  thrown  upon 
tlie  crown  of  showing  that  tlie  high-water  mark  in  former  times 
extended  further  inhmd  than  at  present  {The  Attorney-General  v. 
Chamherlaine,  4  Kay  dc  Johns,  i?.,  t>92 ;  vide  Atiornexj-General  v. 
ChamherSy  4  De  Gex  cfc  Jones'  7?.,  55). 

It  seems  that  a  court  of  equitj'  will  not  refuse  relief  to  a  person 
whose  land  has  been  improperly  sold  in  consequence  of  confusion 
of  boundary,  although  such  confusion  may  have  arisen  from  the  nc'"-- 
lect  of  the  party  seeking  relief,  or  those  through  whom  he  claims. 
Thus,  in  a  late  case  before  Yice-Chancellor  AVood,  it  appeared 
that  a  testatrix,  by  her  will,  appointed  the  manor  of  W.  (over 
whicli  she  had  a  power  of  appointment)  to  uses,  under  which  the 
])laintiff  became  entitled  as  tenant  in  tail  in  possession  ;  and  slie 
devised  her  residuary  real  estate  to  trustees  upon  trust  to  sell. 
The  trustees  sold,  inter  alia,  a  field,  part  of  whicli  was  shown  by 
the  abstract  to  be  parcel  of  the  manor;  and  they  procured  the' 
legal  estate  in  the  wdiole  property  sold  to  be  conveyed  to  a  pur- 
chaser who  took  with  full  notice  of  the  limitations  under  whiclt 
the  plaintiff  became  entitled.  It  was  held  that,  notwithstanding 
the  error  of  the  trustees  arose  from  the  boundaries  of  the  property 
having  been  confused  by  the  person  through  whom  the  plaintill: 
claimed,  the  plaintiff  was  not  precluded  from  establishing  in  equity 
a  claim  to  his  share  of  the  land,  and  to  a  proportional  part  of  the 
rents  from  the  time  he  became  tenant  in  tail  in  possession ;  and 
an  inquiry  was  directed  in  what  part  of  the  field  the  plaintift''s 
portion  was  situated  {HicJcs  v.  Hastings,  3  luiy  <&  Johns.  7?., 
701 ;  and  vide  Clarke  v.  Yoiige,  5  Beavan's  R.,  523). 

And  perhaps  it  may  here  be  repeated  that  Lord  Hai-dwicke  has 
held  and  declared  that  full  and  actual  possession  is  sufficient  title 
to  maintain  a  suit  for  settling  boundaries;  that  a  strict  title  is. 
never  entered  into  in  cases  of  this  kind  {Penn  v.  lord  Baltiinor-, 
1  Vesey,  Sen.,  7?.,  444).  And,  further,  it  seems  that  the  retainer 
by  the  court  for  a  year  of  a  bill  praying  for  relief  on  the  ground 
of  confusion  of  boundaries,  and  the  consequent  impossibility  of 
distraining  for  a  rent-charge,  is  not  in  itself  a  determination,  that 
relief  in  equity  must  ultimately  be  given;  nor  will  the  admission 
by  the  defendant  of  the  plaintift''s  right  give  the  court  of  equity 
jurisdiction  in  a  matter  not  ])roperly  within  its  cognizance  (  Vide 
Ilarwood  v.  Oglander,  6  Ves.  B.,  225  ;  Geast  y.  Barker,  2  Bro^ 
35 


•2~4  LAW  OF  BOUNDARIES. 

a  a,  61 ;  Cicftls  V.  Curtis,  11.,  620,628;  Dtike  of  Leeds  v.  C(A'- 
f  oration  of  Neiv  Radnor,  Ih.,  338). 

Mr.  Justice  Story,  in  treating-  upon  this  subject  in  his  valuable 
Coniuientaries  on  Equity  Jurisprudence,  observes  :  "  Where  there 
is  an  ordinary  legal  remedy,  there  is  certainly  no  ground  for  the 
interference  of  courts  of  equity,  unless  some  peculiar  equity  super- 
venes which  a  court  of  common  law  cannot  take  notice  of  or  pro- 
tect."    The  learned   author  then  refers  to  several  English  cases, 
which  have  been  hereinbefore  cited,  and  continues :  "  These  cases 
are  sufficient  to  show  that  the  existence  of  a  controverted  boundary 
by  no  means  constitutes  a  sufficient  ground  for  the  interposition  of 
courts  of  equity  to  ascertain  and  fix  that  boundary.     Between  inde- 
pendent proprietors  such  cases  would  be  left  to  the  proper  redress  at 
law.     It  is,  therefore,  necessary,  to  maintain  such  a  bill  (as  has 
been  already  stated),  that  some  peculiar  equity  should  be  superin- 
duced.    In  other  words,  there  must  be  some  equitable  ground 
attaching  itself  to  the  controversy."     What  will  constitute  such  a 
ground  is  then  briefly  discussed,  when  the  learned  author  proceeds 
to  say :  "  In  the  next  place,  it  will  be  a  sufficient  ground  for  the 
exercise  of  jurisdiction  that  there  is  a  relation  between  the  parties 
which  makes  it  the  duty  of  one  of  them  to  preserve  and  protect 
the  boundaries,  and  that  by  his  negligence  or  misconduct  tho 
confusion  of  boundaries  has  arisen.     *     *     *     In  the  next  place, 
a  bill  in  equity  will  lie  to  ascertain  and  fix  boundaries  when  it  will 
prevent  a  multiplicity  of  suits.     This  is  an  old  head  of  equity 
jurisdiction ;  and  it  has  been  very  properly  applied  to  cases  of 
boundaries.     *     *     *     And  it  will  not  constitute  any  objection 
to  a  bill,  to  settle  the  boundaries  between  two  estates,  that  they 
are  situate  in  a  foreign  country,  if,  in  other  respects,  the  bill  is, 
from  its  nature,  properly  maintainable"  (1  Storfs  Eq.  Jurispru- 
dence, §§  616-621). 

The  doctrine  will  be  further  illustrated  by  a  reference  to  a  few 
leading  cases  in  which  a  court  of  equity  has  refused  to  interfere. 
In  an  early  case,  before  the  High  Court  of  Chancery  of  England, 
Lord  Tliurlow  refused  to  issue  a  commission  to  ascertain  the 
boundaries  of  two  parishes,  with  a  view  to  settling  disputed  ques- 
tions as  to  poor-rates  belonging  to  each  parish,  saying:  "That  if 
he  should  entertain  a  bill  and  direct  an  issue  in  such  a  case,  he  did 
not  see  what  case  would  be  peculiar  to  courts  of  law.  *  *  * 
Where  tliere  was  a  common  right  to  be  ti-ied  such  a  proceeding 


DISPUTED   BOUXDARTES,    HOW  SETTLED.  275 

was  to  be  understood.     The  boundary  between  the  two  jurisdic- 
tions was  apparent.     That  was  the   case  where  the  tenants  ot  a 
manor  daini  a  right  of  common  by  custom,  because  the  right  ot 
all  the  tenants  of  a  manor  is  tried  by  trying  the  right  of  one ;  but 
in  the  case  before  him  he  saw  no  common  right  which  the  parish- 
ioners had  in  the  boundaries  of  the  parish.     It  would  be  to  try 
the  boundaries  of  all  the  parishes  in  the  kingdom  on  account  ot 
the  poor-lands."     The   doctrine  of  the  case   seems  to  be  that  a 
court  uf  equity  will  not  take  jurisdiction  of  controversies  in  respect 
to  boundaries  simply  to  prevent  a  multiplicity  of  suits,  except 
where  only  one  general   right  is  claimed  by  the  bill  against  a 
number  of  defendants  who  have  separate  and  distinct  interests,  of 
such  a  nature  that  trying  the  right  of  one  defendant  is  trying  the 
rierht  of  all  {St.  Luke's  v.  SL  Leonard's,  2  Ausir.  7?.,  95 ;  and 
vide  PhUlips  V.  Hudson,  2  L.  R.  Ch.  Apjp.,  243).     And  in  a  later 
case,  before  Lord  Chancellor  Loughborough,  the  bill  of  the  plain- 
tiff charged  that  the  boundaries  of  the  land  in  question  were  so 
intermi  °ed  and  blended  that  no  ejectment  could  be  brought,  and 
prayed  the  court  to  ascertain  the  lands,  and  declare  which  belonged 
to  the  plaintiff  and  which  to  the  defendants.     The  bill  was  demur- 
red to  by  the  defendants,  and  it  was  insisted  that,  from  the  plain- 
tiff's own  statements,  there  was  nothing  to  prevent  him  from 
bringing  an  ejectment  if  he  was  entitled  to  any  relief,  and  was 
not  barred  by  length  of  time.     The  lord  chancellor  allowed  the 
demurrer,  saying  T"  Upon  the  face  of  the  bill  it  is  quite  clear  the 
plaintiff  may  draw  a  declaration  in  ejectment.     The  bill  states 
the  title,  and  that  by  some  means  or  other  the  same  persons  are 
in  possession  of  all  the  lands,  and  have  confounded  the  bounda- 
ries.    The  only  consequence  is,  that  the  plaintiff  may  come  for  a 
discovery  to  know  what  are  the  farms,  and  who  are  in  possession ; 
but  that  never  can  entitle  him  to  come  for  possession  and  an 
account.     He  avers,  contrary  to  the  fact  disclosed  by  his  bill,  that 
he  does  not   know  the  lands.     He  describes  the  two  farms  and 
the  tenement.     If  he  had  filed  a  bill  for  discovery  only,  he  must 
have  paid  for  the  discovery ;  but  it  goes  on  to  pray  relief,  that  is 
merely  an  ejectment.     As  to  the  form  of  the  demurrer,  I  take  it 
now  to  be  a  settled  point  that,  though  he  may  be  entitled  to  a 
discovery,  yet    if  he  goes  on   to  pray  relief  to  which  he  is  not 
entitled,  it  is  a  good  ground  of  demurrer,  and  the  defendant  is 
not  to  be  put  to  answer.     He  may  bring  an  ejectment  for  a  farm, 


£•(]  LAW   OF  BOUXDARIES. 

the  name  of  wliich  lie  knows,  and  a  tenement,  which  he  describes 
Ly  the  name  of  tlie  last -occupier"  {Loker  v.  Eolle,  3  Yesei/s  li., 

4,  7). 

Keference  may  also  be  made  to  a  couple  of  leadmg  American 
cases  in  which  courts  of  equity  have  refused  to  take  cognizance 
of  disputed  boundaries.  Prior  to  the  present  statute  of  Connect- 
icut upon  the  subject,  proceedings  were  instituted  in  a  case  in 
equity  for  the  purpose  of  settling  a  disputed  boundary  between 
two  adjoining  proprietors,  and  the  court  fefused  to  interfere.  The 
petition  alleged  in  substance  that  the  defendant  was  in  possession 
of  a  strip  of  land,  adjoining  the  laud  of  the  plaintiff,  which  really 
belonged  to  him,  and  the  court  was  asked  to  determine  in  whom 
the  strip  of  land  was  vested.  The  court  was  unable  to  see  that 
there  was  any  matter  charged  in  tlie  petition  which  could  not  be 
made  available  in  a  court  of  law,  and  it  was  therefore  decided 
that  the  bill  could  not  be  sustained.  Hinman,  J.,  delivered  the 
opinion  of  the  court,  and  said :  "  We  have  not  been  able  to  dis- 
cover any  ground  in  this  case  upon  which  the  plaintiff's  bill  can 
be  sustained.  It  cannot  be  supported  on  the  ground  of  quieting 
them,  or  either  of  them,  in  the  possession  of  property  to  which 
they  liave  an  equitable  but  not  a  legal  title.  In  respect  to  the 
land  in  controversy,  it  is  admitted  and  claimed  that  the  title  to  it 
is  a  perfect  legal  title  in  one  of  the  plaintiffs.  *  *  *  Upon 
the  facts  stated  in  the  bill  we  can  discover  no  other  plausible 
ground  for  the  interference  of  a  court  of  equity.  The  only  other 
object  to  which  these  fticts  seem  to  have  any  application  is  the 
Eettleraent  of  a  disputed  boundary  between  the  land  of  Elisha 
AYalcott  and  the  land  of  the  defendant.  *  *  '-^  The  plaintiffs 
do  not  claim  that  a  mere  controversy  in  respect  to  boundaries  is 
Bufticient  to  transfer,  to  a  court  of  equity,  jurisdiction  over  the 
proper  subject-matter  of  an  action  at  law  which  depends  upon  it" 
( Walcott  v.  Rohhins,  26  Conn.  R.,  230,  239,  241). 

In  a  late  case  before  the  Supreme  Court  of  California,  it  was 
decided  that  the  bare  existence  of  a  controverted  boundary  is  not 
sufficient  ground  for  relief,  in  equity,  by  an  action  to  settle  dis- 
puted boundaries  between  adjoining  landowners ;  that  before 
courts  of  equity  will  interfere  in  such  cases  some  peculiar  cir- 
cumstances must  exist,  of  such  a  nature  that  an  action  of  eject- 
ment will  not  afford  relief.  The  pleadings  in  the  case  before  the 
court  showed  it  to  be  a  case  where  relief  could  be  obtained  in  a 


riSPUTED   BOUXDARIES,    HOW  SETTLED.  277 

court  of  law,  and  therefore  the  court  below  dismissed  the  hill,  and 
the  Supreme  Court  affirmed  the  judgment. 

Sanderson,  J.,  delivered  the  opinion  of  the  court,  and  said: 
"  Tiiis  action  purports  to  be  what  would  have  been,  prior  to  the 
adoption  of  our  code  of  procedure  in  civil  cases,  a  bill  in  equity 
to  ascertain  and  settle  disputed  boundaries  between  adjoining  land- 
owners. *  *  *  It  may  be  conceded  that,  under  the  head  ot 
concurrent  jurisdiction,  courts  of  equity  may  entertain  cases  of 
this  character ;  but  it  is  certain  that  of  late  they  have  coniined 
their  jurisdiction  in  respect  to  such  cases  within  very  narrow  lim- 
its, it  can  rarely  happen  that  the  action  of  ejectment  will  not 
aflbrd  adequate  relief  in  such  cases ;  and  wherever  such  appeai-s 
to  be  the  case,  courts  of  equity  will  decline  to  interfere,  upon  the 
familiar  principle  that  where  there  is  an  adequate  legal  remedy 
there  is  no  ground  for  relief  in  equity.  *  *  *  The  existence 
of  a  controverted  boundary  by  no  means  constitutes  sufficient 
ground  for  relief  in  equity;  in  all  such  cases  the  remedies  at  law- 
are  adequate.  Before  courts  of  equity  will  interfere,  some  equi- 
table ground  must  attach  itself  to  the  controversy— such  as  fraud, 
or  some  relation  between  the  parties  which  makes  it  the  duty  of 
one  of  them  to  protect  aiul  preserve  the  boundaries ;  or  that  the 
question  affects  a  large  number  of  persons,  and  the  boundaries 
have  become  confused  by  lapse  of  time,  accident  or  mistake" 
(  Wethcrhee  v.  Dunn,  36  Cal.  It,  249,  255). 

In  respect  to  the  practice  in  cases  of  bouiulary  in  courts  of 
equity,  little  need  be  said,  for  those  cases  are  governed  in  the 
main  by  the  same  principles  by  which  otiiers  are  governed.  And 
yet  there  are  some  rules  of  practice  which  are  peculiar  to  those 
cases.  In  granting  relief  in  cases  of  confusion  of  boundaries,  a 
court  of  equity  may  either  direct  a  connnission  to  issue  for  the 
purpose  of  ascertaining  them,  or  it  may  direct  a  trial  of  tlie 
question  before  the  court  itself,  with  or  without  a  jury,  or  before 
a  court  of  common  law.  Perhaps  the  rule  laid  down  by  Lord 
Brougham,  when  Lord  Chancellor  of  England,  is  as  nearly  to  the 
point  as  any  which  can  be  suggested,  lie  observes  :  "  Where  the 
question  is  one  involving  a  mere  positive  affirmation  on  the  one 
hand,  or  a  negative  on  the  other,  an  issue  is  the  Utter  and  more 
convenient  course.  But  where  the  object  of  the  inquiry  is  to 
ascertain  how  mucli  of  the  land  has  been  retained  by  the  dofeiul- 
ant,  and  in  what  direction,  and,  if    the    ])art  retained    cannot  bo 


278  i^TF   OF  BOUNDARIES. 

exactly  ascertained,  to  determine  whether  any  and  what  compen 
sation  should  be  made  to  the  plaintiff,  the  investigation  is  much 
more  easily  and  properly  conducted  by  a  commission,  composed 
partly  of  learned  persons  and  partly  of  surveyors  perambulating 
upon  the  spot,  than  before  a  jury,  amidst  the  hurry  and  inaccuracy 
necessarily  incident  to  a  trial  at  Nisi  Prius  "  {Godfrey  v,  Zittel, 
2  Eussell  &  Mylne's  B.,  630).  In  a  much  later  case  before 
Yice-Chancellor  Wood,  involving  similar  principles,  the  crown 
sought  to  recover  land  alleged  to  have  been  reclaimed  from  the 
sea  by  encroachment  or  purpresture.  The  defendant  disputed  the 
crown's  title  to  the  soil  between  the  then  present  high  and  low- 
water  mark.  The  court  directed  issues  to  try  that  right,  before 
inquiring  how  far  in  former  times  the  ancient  high-water  mark 
extended  inland ;  notwithstandii>g  the  hardship  it  might  impose 
upon  the  defendant,  who,  by  admitting  the  soil  upon  which  he  had 
exercised  acts  of  ownership  to  be  part  of  the  foreshore,  would,  in 
effect,  have  proved  the  case  of  the  crown,  in  the  event  of  his  fail- 
ing to  satisfy  a  jury  that  a  grant  must  be  presumed  {The  Attorney- 
General  V.  Chamherlalne,  4  Kay  &  Johns.  JR.,  292). 

It  has  been  very  properly  remarked  that  partition  is  not  given 
for  any  such  reason  as  confusion  of  boundaries ;  and  yet,  from  the 
nature  of  the  interest  of  the  parties,  a  commission  to  settle 
boundaries  partakes  very  much  of  the  nature  of  a  commission  of 
partition,  and  it  is  nearly  in  the  same  form,  and  issued  out,  exe- 
cuted and  returned  in  the  same  manner.  It  may,  therefore,  suf- 
fice to  refer  to  any  approved  work  on  chancery  practice  for  an 
account  of  the  proceedings  of  a  court  of  equity  under  a  decree 
for  partition.  The  method  of  nominating  the  commissioners  and 
suing  out  the  commission,  the  powers  of  the  commissioners  in 
examining  witnesses  and  enforcing  the  production  of  deeds,  and 
the  like,  and  many  other  points  of  practice  which  occur  both  in 
commissions  to  settle  boundaries  and  in  commissions  for  partition, 
will  be  found  detailed  in  the  works  on  chancery  practice,  and  par- 
ticularly in  Mr.  Daniell's  distinguished  treatise  upon  that  subject. 

In  form,  the  decree  in  these  cases  directs  a  commission  to  issue, 
directed  to  certain  connnissioners  therein  named,  to  distinguish 
the  lands  of  the  plaintiff  from  those  of  the  defendant,  and  to  set 
out  the  same  by  metes  and  bounds.  It  directs  all  deeds  and 
writings  relating  to  either  estate,  in  the  custody  or  power  of  any 
of  the  parties,  to  be  produced  before  the  commission '^rs  upon  oath, 


DISPUTED   BOUyDARIES,   HOW  SET'lLED.  279 

^s  tliey  shall  require  ;  and  declares  that  the  commissioners  shall 
be  at  liberty  to  examine  witnesses  upon  oath,  take  their  deposi- 
tions in  writing,  and  retnrn  the  same  with  the  commission.  It 
then  directs  that,  after  tiie  lands  shall  be  so  set  out,  the  defendant 
shall  deliver  possession  thereof  to  the  ])laintiff,  and  that  the  ]dain- 
tiffand  his  heirs  shall  hold  and  enjoy  tiie  same  against  the  defend- 
ant or  an}'  person  or  persons  claiming  under  him.  An  account 
and  apportionment  of  rents  and  profits,  as  well  as  an  account  oi 
all  tind)er  cut,  is  often  ordered  where  the  nature  of  the  case  seems 
to  call  for  it  {Vide  2  Danlelli  Chancery  Practice^  late  Ain.ed.. 
1163-1105). 

Mutual  conveyances  are  not  ordered  in  the  settlement  of  bound- 
ary questions,  for  the  reason  that  a  settlement  of  boundaries  does 
not  amount  to  an  alienation  ;  for,  as  was  well  said  by  Lord  Hard- 
wicke,  "if  fairly  made  without  collusion,  the  boundaries  so  settled 
are  ])resumed  to  be  the  true  and  ancient  limits"  {Penn  v.  Lord 
Baltuiwpe,  1  Ves.^  Sen.,  P.,  44:4:,  448).  Lord  Chancellor  Eldon 
decided,  in  a  case  before  him,  on  a  bill  brought  by  a  prebendary 
against  his  lessees,  who  all  claimed  under  the  same  lease,  for  a 
commission  to  ascertain  the  boundaries  of  the  prebended  lands, 
that  the  prebendary  was  entitled  to  have  as  many  commissioners 
as  his  lessees  ( Willis  v.  Parkinson,  1  Swanto7i's  P.,  9). 

In  respect  to  the  proper  parties  in  a  case  in  equity  to  settle  and 
fix  a  disputed  boundary  between  adjacent  landownei's,  it  may  be 
affirmed  generally  that  all  who  have  an  interest  in  the  question 
must  be  before  the  court.  In  a  case  before  the  Ilio-h  Court  of 
Chancer}'  of  England,  hereinbefore  referi'ed  to,  which  was  a  suit 
to  enforce  an  agreement  respecting  the  Ijoundaries  of  the  two 
proprietary  governments  of  Pennsylvania  and  Maryland,  Lord 
Hardwicke  ordered  the  cause  to  stand  over,  that  the  attorney- 
general  might  be  made  a  party  in  res])ect  of  the  interests  of  the 
crown.  The  attorney-general  afterward  left  it  to  the  court  to 
make  a  decree,  so  as  not  to  prejudice  the  rights  of  the  crown 
{Penn  v.  Lord  Baltimore,  1  Yes.,  Sen.,  P.,  -i-i-J: ;  and  vide  Miller 
V.  Warrington,  1  Jack,  dc  Walk.  P.,  484).  And  it  has  been 
expressly  held  by  the  same  court  that  the  remainder-man  and  all 
persons  having  any  interest  in  the  property  are  necessary  parties 
to  a  bill  for  a  commission  to  ascertain  boundaries  ;  for  in  such  a 
case  the  tenent  of  the  particular  estate  has  no  interest  distinct 
from  and  independent  of  the  estate  of  those  in  remainder,  so  that 


280  i.4Tr   OF  BOUNDARIES. 

a  complete  decree  cannot  be  made  without  bringing  them  all 
before  the  court ;  in  which  respect  a  decree  for  the  settlement  of 
boundaries  differs  from  one  for  partition,  which  may  be  made  in 
favor  of  tenants  for  life  or  years  for  the  period  during  which  their 
interest  continues,  without  affecting  the  holders  of  succeeding 
estates  {Rayley  v.  Best,  1  Muss,  cfc  Mylne's  H.,  659 ;  Atkins  v. 
Ilatton,  2  Austr.  R.,  386  ;  Baring  v.  Nash,  1  Vesey  c&  Beame's 
J2.,  551.)  And  in  consequence  of  this  principle  in  another  case, 
hereinbefore  referred  to,  which  was  a  suit  to  ascertain  boundaries, 
the  attorney-general  was  made  a  defendant,  upon  a  suggestion  of 
some  claim  on  the  part  of  the  crown  to  the  reversion,  after  a  long 
lease,  of  which  300  years  were  unexpired  {Miller  v.  Warrington, 
5  Jack.  i&  Walk.  A\,  484). 

It  appears  by  one  case,  at  least,  hereinbefore  referred  to,  that  a 
bill  may  be  maintained  in  a  court  of  equity  for  relief  in  the  case 
of  rent,  where  the  remedy  at  law  by  distress  lias  become  very 
difficult  by  reason  of  confusion  of  boundaries  or  any  otlier  cause ; 
and  that  in  such  a  case  all  the  terre-tenants  of  the  lands  out  of 
which  the  rent  issues  must  be  brought  before  the  court,  to  enable 
it  to  make  a  complete  decree  {Benson  v.  Baldwin,  1  Atkyns'  i?., 
598). 

With  respect  to  the  costs  in  suits  relating  to  boundaries,  no 
certain  rule  can  be  laid  down.  If  the  confusion  of  the  boundaries 
has  been  occasioned  by  fraud  or  neglect  of  one  of  the  parties,  who 
had  a  duty  imposed  upon  him  to  preserve  the  boundaries  distinct, 
the  whole  of  the  costs  of  the  commission  would  probably  be 
thrown  upon  him  (  Vide  Grierson  v.  Eyre,  9  Vesey''s  JR.,  345 ; 
Metcalfe  v.  Beckwith,  2  I*.  TFms.  li.,  376).  But  where  neither 
party  has  been  in  fault  the  costs  may  be  equally  apportioned 
between  the  plaintiff  and  the  defendant,  even  though  the  interest 
of  one  may  be  more  considerable  than  the  interest  of  the  other. 
Indeed,  it  was  so  held  by  Lord  Hardwicke  in  a  case  before  him 
{Norris  v.  Le  Neve,  3  Aiky7is'  B.,  82).  Although  the  costs  in 
such  cases  have  sometimes  been  ordered  to  be  paid  in  a  ratable 
proportion  to  the  value  of  the  estates,  the  boundaries  of  which 
were  confused  (  Vide  2  DanielW  Ch.  Pr.,  late  Am.  ed.,  1165). 

It  may  be  added  that  it  has  been  held  that  commissioners,  under 
a  commission  of  partition,  have  no  lien  on  the  commission  for 
their  charges.  The  same  rule  would  doubtless  he  held  applicable 
to  the  case  of  commissioners  appointed  to  settle  boundaries.     Ic 


EVIDENCE  IX  BOUXDARY  CASES.  281 

the  language  of  the  vice-chancellor,  in  the  partition  case,  "it  is 
not  competent  to  an  officer  of  the  court  to  stop  in  any  stage  of  his 
duty,  and  reiuse  to  proceed.  Pie  must  go  on  and  complete  it,  and 
may  then  come  to  the  court  for  his  remuneration.  A  contrary 
rule  would  be  highly  conducive  to  injustice,  and  favor  exorbitant 
demands"  {Young  v.  Sutton,  2  Vesey  cfc  Beamei  It.,  305).  This 
language  is  as  pertinent  in  a  case  of  boundary  as  in  partition  ;  and 
probably  the  same  rule  would  be  held  to  ap})ly  in  both  cases. 


CHAPTER  XXIII. 

THE  METHODS  BY  WHICH  THE  BOUNDARY  OF  LANDS  IS  ESTABLISHED 

THE    EVIDENCE   IN    CASES    RELATING    TO    BOUNDARY    OF  REAL    PRO- 
PERTY  CONSTRUCTION  OF  GRANTS PAROL  EVIDENCE  IN  CASES  OF 

UNCERTAINTY  AND  AMBIGUITY PRACTICAL  LOCATION  OF  BOUNDARY. 

The  subject  of  evidence  in  respect  to  controversies  relating  to 
the  boundaries  of  real  property  has  been  substantially  treated  in 
the  preceding  chapters  of  this  work,  in  which  the  construction  of 
grants  and  conveyances  was  considered.  But  it  is  proposed  to 
devote  another  chapter  to  an  examination  of  the  methods  by  which 
the  boundary  of  lands  is  established,  and  the  rules  of  evidence 
governing  cases  relating  to  boundary  disputes,  without  repeating 
any  of  the  matters  contained  in  the  chapters  on  construction.  As 
a  general  proposition,  it  may  be  affirmed  that  boundary  may  be 
proved  or  established  by  every  kind  of  evidence  which  is  admis- 
sible to  establish  anj'  other  fact ;  and,  under  certain  circumstances, 
a  species  of  evidence  may  be  admitted  in  these,  which  might  not  be 
proper  in  ordinary  cases.  When  the  description  of  the  boundary 
is  in  writing,  as  is  most  usually  the  fact,  the  instrument  is  first  to 
be  examined;  and  when  that  is  clear  there  is  but  little  difKculty 
in  the  case,  except  to  locate  it  upon  the  ground.  And  here  it 
may  be  remarked,  that  the  rule  requiring  the  best  evidence  relates 
to  its  grade  only,  and  not  to  its  conclusions.  On  this  principle  it 
has  been  decided  that  the  evidence  of  a  bystander  is  competent  to 
prove  where  lines  were  run  in  a  certain  private  survey,  though  the 
surveyor  be  living  {Richardson  v.  MiWurn,  17  Md.  R.,  67). 

In  locating  a  deed  upon  the  ground,  the  rule  is  generally  to  rely  : 
3G 


282  i.lTr  OF  BOUNDARIES. 

1.  On  the  lines  originally  surveyed ;  2.  On  lines  run  from  acknow- 
ledged calls  or  corners ;  3.  On  lines  run  according  to  the  course 
and  distance  named  in  the  deed  {Ave?y  v.  Baum,  Wrighfs  i?., 
576).  The  instrument  itself  must  be  in  evidence,  if  it  be  possible 
to  obtain  it,  and  that  must  be  interpreted  according  to  the  intent 
of  the  parties,  as  has  been  abundantly  shown  in  another  place ; 
and  to  find  this  intent,  the  rule  is  to  give  most  effect  to  those 
things  about  which  men  are  least  liable  to  mistake.  On  this  prin- 
ciple Mr.  Greenleaf,  in  his  work  on  Evidence,  declares,  upon 
authorit}'  which  he  cites,  that  the  things  usually  called  for  in  a 
grant,  that  is,  the  things  by  which  the  land  granted  is  described, 
have  been  thus  marshaled :  First.  The  highest  regard  is  had  to 
natural  boundaries.  Secondly.  To  lines  actually  run,  and  corners 
actually  marked  at  the  time  of  the  grant.  Thirdly.  If  the  lines 
and  courses  of  an  adjoining  tract  are  called  for,  the  lines  will  be 
extended  to  them,  if  they  are  sufficiently  established,  and  no  other 
departure  from  the  deed  is  required;  marked  lines  prevailing  over 
those  which  are  not  marked.  Fourthly.  To  courses  and  distances; 
giving  preference  to  the  one  or  the  other  according  to  circum- 
stances (1  Greenleaf  on  Evidence^  §  301,  note). 

It  has  been  shown  in  preceding  chapters  that  it  is  a  general  and 
universal  rule,  that  course  and  distance  yield  to  natural  and  ascer- 
tained objects.  But  where  these  objects  are  wanting,  and  the 
course  and  distance  cannot  be  reconciled,  there  is  no  universal 
rule  that  makes  it  imperative  to  prefer  the  one  to  the  other. 
Cases  may  exist,  in  which  the  one  or  the  other  may  be  preferred, 
upon  a  minute  examination  of  all  the  circumstances.  This  princi- 
ple was  illustrated  in  the  decision  of  a  case  in  the  Supreme  Court 
of  the  United  States,  many  j-ears  ago,  in  whicli  another  important 
and  practical  rule  was  laid  down,  that  in  a  case  of  doubtful  con- 
struction, the  claim  of  the  party  in  actual  possession  ought  to  be 
maintained  {Preston''s  Heirs  v.  Boiomar^  6  Wheat.  J?.,  580 ;  and 
vide  same  case,  2  BiWs  i?.,  493 ;  also  Townsend  v.  Hoyt,  51  iT. 
Y.  R.,  656). 

Another  rule  laid  down  by  the  courts  as  to  the  construction  of 
grants,  and  which  may  properly  be  noted  here,  is  this:  "If  there 
are  certain  particulars  once  sufficientl}^  ascertained,  whicli  desig- 
nate the  thing  intended  to  be  granted,  the  addition  of  a  cii'cum- 
stance,  false  or  mistaken,  M'ill  not  frustrate  the  grant"  {Jacl'son  v 
ClarJc,  7  Johns.  li.,  217,  228 ;  Jackson  v.  Marsh,  6  Cow.  B.,  281) 


EVIDEXCE  IN  BOUXDARY  CASES.  283 

And  every  grant  must  be  so  construed,  if  possible,  as  to  gi\e 
effect  to  the  intention  of  the  parties.  This  doctrine  has  been 
fully  discussed  in  another  place.  In  respect  to  letters  patent,  the 
old  Supreme  Court  of  New  York  held,  long  ago,  that  if  the  patent 
was  issued  by  mistake,  or  upon  false  suggestion,  it  is  voidable 
only ;  and  that  unless  letters  patent  are  absolutely  void  on  the 
face  of  them,  or  the  issuing  of  them  was  without  authority  or 
prohibited  by  statute,  they  can  only  be  avoided  in  a  regular  course 
of  pleading.  And  again :  "  When  the  defect  arises  on  circum- 
stances dehors  the  grant,  the  grant  is  voidable  only  by  suit.  It 
■would  be  against  precedent,  and  of  dangerous  consequence,  to 
permit  letters  patent  to  be  impeaclied  collaterally  "  (Jackson  v. 
Lawton,  10  Johns,  i?.,  23).  This  was  held  in  respect  to  a  public 
grant,  but  probably  the  same  doctrine  would  prevail  in  the  case 
of  private  conveyances.  If  there  is  nothing  in  a  patent  to  con- 
trol the  call  for  course  and  distance,  the  land  intended  to  be 
granted  must  be  bounded  by  the  courses  and  distances  of  the 
patent,  according  to  the  magnetic  meridian  ;  course  and  distance 
yielding  to  a  call  for  natural  objects.  All  lands  are  supposed  to 
have  been  actually  surveyed,  and  the  intention  of  the  grant  is  to 
convey  the  land  according  to  the  actual  survey.  Obviously,  there- 
fore, the  survey  is  competent  evidence  in  a  controrersy  in  respect 
to  the  boundary  of  the  land  conveyed  [Mcloe-p's  Lessee  v.  ^YaRe7'J 
9  CrandCs  R.,  173).  But  where  plats  are  returned,  without  any 
actual  survey  having  been  made,  and  grants  made  pursuant  to 
them,  the  general  rule  of  construction  is,  that  the  most  natural 
and  most  certain  calls  shall  control  those  which  are  less  certain 
and  less  material  {Needham  v.  Prijor'^s  Lessee,  7  Wheat.  B.,  7). 
This  doctrine  has  also  been  f  ally  discussed  in  another  place,  and 
need  not  be  dwelt  upon  here.  In  general,  where  an  object  is 
called  for  in  a  grant,  the  line  must  terminate  at  that  object, 
whether  it  be  a  tree,  marked  line  or  natural  boundary  ;  unless 
there  be  something  else  in  the  grant  evidencing  that  the  object  is 
not  called  for  as  the  termination  of  the  line.  If  this  should  be 
doubtful,  the  plat  and  certificate  of  survey  may  be  resorted  to  for 
explanation  {Simni's  Lessee  v.  Dichsoji,  1  CooJi'e''s  7?.,  137). 

But  it  often  becomes  necessary,  in  cases  of  boundary,  to  resort 
to  extrinsic  evidence  to  aid  the  court  in  giving  the  proper  con- 
struction of  the  deed  or  other  instrument  upon  which  the  ques- 
tion depends ;  and  it  is  desirable,  therefore,  to  refer  to  some  of 


284  LAW   OF  BOUNDARIES. 

the  rules  which  guide  the  courts  in  cases  of  tliis  nature.  Where 
the  instrument  is  plain  in  its  language,  the  courts  interpret  its 
meaning  from  the  document  itself.  But  where  the  conveyance  or 
other  written  instrument  is  ambiguous  or  doubtful  in  its  terms, 
other  evidence  must  be  resorted  to  to  explain  the  document  and 
clear  up  latent  ambiguities,  and  in  these  cases  it  is  important  to 
understand  the  rules  which  have  been  sanctioned  by  the  courts. 

Now,  it  is  a  well-established  rule  of  evidence  that  parol  evi- 
dence is  not  admissible  to  vary  a  written  document,  and  this  rule 
is  as  applicable  to  questions  relating  to  boundaries  as  to  others. 
Parol  evidence,  however,  may  be  admitted  for  the  purpose  of 
explaining  the  writing  and  removing  latent  ambiguities.  Parcel 
or  no  parcel  of  the  property  conveyed  is  alwaj-s  a  question  of 
evidence  ;  "  and  it  may  be  laid  down  generally  that  all  facts  rela- 
ting to  the  subject-matter  and  object  of  a  deed,  such  as  that  the 
property  comprised  in  it  did  or  did  not  belong  to  the  grantor,  tlie 
mode  of  acquiring  it,  the  local  situations,  limits,  and  distribution 
of  the  property,  are  admissible  to  aid  in  ascertaining  wliat  is 
meant  by  the  words  used  in  the  instrument"  {Doe  v.  Mcwtin^  4 
Barn.  S  Adoljyh.  i?.,  785 ;  and  vide  JW^lurraij  v.  Spicer,  5  L. 
B.  Eg.,  527 ;  Baird  v.  Fortune,  7  Jur.,  ]^.  S.,  926).  Upon  this 
principle,  where  there  are  two  or  more  monuments,  either  of  whicli 
may  be  the  one  designated  in  a  deed,  parol  evidence  is  admissible 
to  show  which  is  the  monument  intended.  But  where  the  descrip- 
tion of  the  premises  conveyed  in  a  deed  is  sufficiently  certain  by 
reference  to  other  deeds  and  monuments  existing  when  those  deeds 
were  made,  evidence  that  the  grantor,  when  he  executed  the  deed, 
pointed  out  a  monument  as  the  boundary,  whicli  was  not  the  true 
one,  would  not  limit  the  operation  of  the  deed  to  the  monument 
thus  pointed  out,  where  there  was  no  agreement  or  assent  on  the 
part  of  the  grantee  {C lough  v.  Bowman,  1^  N.  11.  R.,  504). 

Many  cases  may  be  cited  to  show  that  where  an  ambiguitj^,  as  to 
the  location  and  boundaries  of  land,  exists  on  the  fiice  of  a  deed, 
the  court  may  allow  evidence  dehors  the  grant  to  go  to  the  juiy, 
and  that  such  evidence  is  proper  for  their  consideration.  AVhero 
land  was  bounded  by  a  pond,  which  by  means  of  artitieial  works 
was  differently  raised  at  different  times,  the  Supreme  Judicial 
Court  of  Massachusetts  decided  that  this  constituted  a  latent 
ambiguity,  and  that  parol  evidence  was  admissible  to  show  that  a 
certain  line  was  agreed  upon  and  understood  at  the  time  of  the 


EVIDENCE  IX  BOUNDARY  CASES.  285 

conveyance  as  the  boundary  of  the  pond  {^Vaterman  v.  JoJinson, 
13  Pick.  It.,  261).  And  the  same  court  held  tliat  grants  of 
adjoining  hind  by  the  State,  and  occupation  under  them,  and  sub- 
sequent conveyances  by  the  grantees,  referring  to  monuments  not 
existing  at  the  time  of  the  original  grants,  are  admissible  in  evi- 
dence to  prove  the  boundaries.  And  where  such  lands  are 
described  in  the  grant  by  courses  and  distances,  without  reference 
to  monuments,  it  was  declared  that  evidence  of  long-continued 
occupation  under  the  grant  is  admissible  for  the  same  purpose 
{Owen  V.  Bartholomew,  9  Pick,  i?.,  520), 

Extrinsic  evidence  is  always  admissible  to  explain  the  calls  of  a 
deed  for  the  purposes  of  their  application  to  the  sul)ject-matter, 
and  thus  to  give  effect  to  the  deed.  Aiid  where  the  true  location 
of  the  land  in  dispute  has  been  ascertained,  parol  evidence  is 
admissible  to  show  the  proper  location  of  all  the  descriptive  des- 
io-nations  and  calls  of  the  deed,  to  the  end  of  determining  whether 
or  not  tli£  land  in  dispute  passed  by  it,  and  thus  give  effect  to  the 
true  intent  of  the  parties  {Reamer  v.  JVesmit/i,  Si  Cat.  P.,  624). 
And  it  has  been  held,  in  a  controversy  involving  the  location  of  a 
boundary  line  jBxed  by  commissioners  of  partition,  that  monu- 
ments fixed  at  the  time  and  mentioned  in  their  written  report  will 
control  distances.  And  that  in  such  a  case  parol  evidence  is 
admissible  to  explain  an  ambiguity  arising  from  their  omission  to 
describe  the  monument  at  one  corner,  and  from  an  erroneous 
statement  of  one  distance  {Hedge  v.  Sims,  29  Ind.  P.,  57-t). 

Where  monuments,  for  example,  stakes  and  stones,  or  a  tree, 
are  referred  to  in  a  deed,  parol  proof  is  always  admissible  to  show 
their  location  (  Vide  Linscott  v.  Fernald,  5  Greenl.M.-,  496 ;  Clare- 
moni  V.  Carlton,  2  A^.  //.  P.,  373  ;  Blake  v.  Dolierty,  5  Wheat. 
P.,  359).  And  where  a  deed  gives  a  description  which  has  not 
acquired  a  fixed  legal  construction,  or  refers  to  a  boundary  which 
is  variable,  parol  evidence  is  admissible  to  explain  the  deed  (  Wate)'- 
man  v.  Johnson,  13  Pick.  P.,  261). 

The  parol  evidence  of  the  surveyor  who  originally  surveyed  and 
located  the  tract  of  land  in  controversy,  was  held  legal  and  com- 
petent to  prove  the  location  and  survey  of  the  tract  calling  to 
begin  at  the  end  of  the  lines  of  another  tract,  and  to  run  to  and 
intersect  other  tracts,  and  that  it  began  at  and  run  to  particular 
places  described  on  the  plats  {Tenant  \.  Ilampletoix,  3  Bar.  cfe 
Johns.  P.,  233).     And  parol  evidence  has  been  held  competent  tc 


286  LAW  OF  BOUNDARIES. 

identity  the  land  described  in  an  original  grant,  which  was  pro- 
duced on  the  trial  of  an  action  to  try  titles,  and  to  establish  the 
artificial  and  other  marks  referred  to  in  the  original  plat  of  the 
land  {Foreman  v.  Scmdefur^  1  Brevard's  i?.,  474).  Of  course, 
the  original  plat  of  the  surveyor  is  evidence  to  show  the  position 
of  the  land  {Alexander  v.  Lively^  5  Mon7'oes  JR.,  159).  But  a 
]  rivate  survey,  made  ex  parte,  without  the  order  of  the  court,  is 
inadmissible  evidence,  in  an  action  of  ejectment,  to  establish  a 
houndary.  And  it  was  held  that  copies  of  the  original  maps  of 
ihe  surveys  of  lands,  in  Mississippi,  deposited  in  the  Surveyor- 
Cleneral's  office,  were  the  best  evidence  of  the  extent,  character 
and  boundaries  of  such  surveys ;  and,  therefore,  that  parol  evi- 
dence that  a  private  survey  conformed  to  such  official  survey,  with- 
out ])roducing  a  cop_y  of  the  official  survey,  was  improper  {Surget 
V.  Little,  5  Smedes  c&  Marsh  R.,  319).  A  map  or  draft  which  is 
ancient,  and  has  been  long  in  use  by  a  company  under  whom  the 
defendant  claimed,  is  held  to  be  evidence  of  boundary  against 
him  {Huffman  v.  McCrea,  56  Penn.  E.,  95).  And  a  map  which 
had  governed  the  sale  of  lots,  and  had  been  treated  for  many 
years  by  the  proprietors  and  purchasers  as  the  original  map,  was 
held  to  be  competent  evidence  to  prove  a  boundary.  But  remarks 
made  upon  the  map  by  a  proprietor  were  declared  not  to  be  com- 
petent evidence  {IIarmer''s  Heirs  v.  Morris,  1  M'Lean^s  R.,  44). 
And  it  has  been  held  that  an  ancient  plan,  drawn  at  the  time  of 
executing  a  deed,  showing  the  bearing  of  the  line  betwixt  the 
premises  and  an  adjoining  lot,  is  no  evidence  of  such  line,  as 
against  such  adjoining  owner  or  his  grantee,  unless  it  is  first  shown 
that  he  was  cognizant  of  such  plan  and  assented  ( Wliitney  v. 
Smith,  10  iV\  77.  li.,  43).  And  a  dotted  line  upon  a  map  is  not, 
ferse,  conclusive  evidence  that  the  line  was  run,  but  parol  evi- 
dence may  be  introduced  to  explain  the  character  of  such  line,  and 
prove  that  it  was  never  actually  run  and  marked  {Newman  v.  Fos- 
ter, 3  Howard's  [J/m.]  It,  383).  A  record  of  a  petition  and 
resurvey  of  a  tract  of  land,  subsequent  to  the  grant  of  it,  is  not 
admissible  to  vary  the  boundaries  and  monuments  of  the  original 
grant  {Osborn  v.  Coioard,  2  Murphy's  R.,  77).  And  where  a 
conveyance  declares  a  fact,  as  that  the  land  adjoins  a  river  or  street, 
parol  evidence  cannot  be  received  to  show  that  it  does  not ;  that 
is  to  say,  unless  the  description  contains  a  latent  ambiguity  or  be 
found  fiilse,  and  therefore  to  be  rejected  {Pride  v.  Sweet,  1  Apple- 


EVIDENCE  IN  BOUNDARY  CASES.  287 

fofi^s  R.,  115).  Upon  a  question  wliicli  of  two  lines  was  a  division 
line,  a  deed  and  draft  were  produced  containino;  evidence  that  one 
line  had  been  made  some  years  before  the  other.  The  Supreme 
Court  of  Pennsylvania  held  that  a  mark  on  a  tree  on  that  line, 
of  the  same  age  as  was  indicated  on  the  draft,  "vvas  but  slight  evi- 
dence that  such  was  the  line,  in  the  absence  of  other  marks  on  the 
line  ( Venango,  etc.,  Oil  Co.  v.  Lewis,  62  Penn.  R.,  3S3). 

Evidence  of  the  possession  of  settlers  on  adjacent  tracts  in  refer- 
ence to  a  division  line,  attempted  to  be  shown  as  recognized  by 
cue  of  the  parties  in  a  suit,  was  held  by  the  old  Supreme  Court  of 
the  State  of  New  York  to  be  admissible  {Rockwell  v.  Adams,  6 
Wend.  R.,  467).  But  the  case  was  taken  to  the  Court  of  Errors, 
and  the  judgment  of  the  Supreme  Court  reversed,  and  the  evi- 
dence, without  explanation,  under  the  circumstances  of  the  case, 
was  declared  to  be  incompetent,  as  being  calculated  to  divert  the 
attention  of  the  jur^^  from  the  true  question  in  issue  between  the 
parties  {Rockwell  v.  Adams,  16  ^Vend.  R.,  285).  It  was  assumed 
in  the  Court  of  Errors  that  there  was  no  ambiguity  or  uncertainty 
as  to  the  location  of  the  boundary  in  question  by  the  terms  of  the 
grant ;  and  that  being  the  case,  the  evidence,  abstractly  considered, 
would  not  be  competent.  Where  the  lines  and  boundaries  of  land 
are  fixed  and  can  be  identified,  a  verbal  agreement,  even  by  the 
parties  interested,  to  fix  the  lines  or  boundaries  different,  would 
not  be  binding.  This  is  well  settled  by  authority.  But  where 
there  is  doubt  as  to  the  identity  of  the  dividing  lines  the  rule  is 
quite  different.  And,  probably,  in  a  case  where  the  parties  were 
really  ignorant  of  the  true  lines,  and  they  cannot  be  positively 
identified  by  the  ordinary  proofs,  the  corresponding  lines  of  set- 
tlers, as  recognized  without  question  for  a  long  time,  would  be 
admissible  as  evidence  to  establish  a  disputed  line  upon  the  same 
tract. 

The  Supreme  Court  of  Maine  has  held,  in  an  action  to  deter- 
mine the  boundary  line  between  the  adjacent  lands  of  two  parties, 
that  a  deed,  given  by  the  original  grantor  of  the  demandant  (but 
dated  after  his  deed)  to  a  third  person,  from  whom  the  tenant,  by 
mesne  conveyance,  derived  his  title,  was  admissible  evidence  for 
the  consideration  of  the  jury  in  favor  of  the  tenant,  when  coupled 
with  testimony  tending  to  prove  that  the  line  was  in  accordance 
with  his  claim  {Chase  v.  White,  41  Maine  R.,  228). 

It  has  been  held  that,  where  the  true  original  line  between  two 


288  LAW  OF   BOUaXDARIES. 

towns  is  the  true  line  of  division  between  the  hmcls  of  individuals 
the  perambulations  of  the  said  line  by  the  selectmen  of  the  towns 
were  evidence  to  show  the  boundary  between  the  lands  of  those 
individuals ;  though  an  adjudication  of  the  Court  of  Sessions, 
establishing  the  said  line,  in  a  suit  between  the  two  towns,  was 
held  not  to  be  competent  evidence  of  the  true  line  between  such 
individuals  {Lawrence  v.  Ilaynes,  5  W.  II.  li.,  33).  Parol  evi- 
dence is  admissible  to  show  that  the  course  and  boundary  in  a 
survey  and  patent  are  incorrectly  stated,  and  that  they  are  other- 
wise on  the  gi-ound  {Magrehan  v.  Adams,  2  Binney's  R.,  109 ; 
Conn.  v.  Penn.,  Peters'  C.  C.  P.,  496 ;  Peed  v.  Langfurd,  3  J. 
J.  2IarshaWs  P.,  420).  But  where  a  deed  conveys  a  specific 
number  of  acres  of  land,  and  no  corner  is  named  in  the  deed, 
parol  evidence  is  held  not  to  be  admissible  to  establish  a  line,  in 
contradiction  to  the  deed,  which  shall  contain  less  land  than  the 
specified  quantity  {Herring  v.  Wiggs,  2  Taylor^s  P.,  34).  And 
where  the  description  in  a  deed  is  made  by  course  and  distance, 
without  reference  to  any  monument,  parol  evidence  is  not  admis- 
sible to  vary  the  course  and  distance  given  {Hamilton  v.  Caywood, 
3  liar.  c&  McIIen.  P.,  437;  Peid  v.  Schenck,  2  Dev.  P.,  415; 
and  vide  Conn.  v.  Penn.,  siiprd). 

Where  a  deed  of  lands  refers  to  another  deed  for  the  descrip- 
tion of  the  premises,  the  contents  of  that  other  deed  cannot  be 
proved  by  parol,  but  the  deed  must  be  produced,  if  in  existence 
and  can  be  found  {Jackson  v.  ParMiurst,  4  Wend.  P.,  369).  And 
where  a  lost  deed  should  accompany  the  ownership  as  an  essential 
muniment  of  title,  no  necessity  will  dispense  with  the  proof  by 
parol  of  the  contents,  that  is  to  say,  of  the  operative  parts  of  the 
instrument  {Metcalf  v.  Yan  Benthuysen,  3  iV.  Y.  P.,  424). 

Evidence  of  what  is  called  a  practical  location  of  the  boundaries 
of  real  property  is  often  competent  in  cases  of  controversy  I'espect- 
ing  division  lines,  and  it  is  sometimes  difficult  to  determine 
whether  such  evidence  should  be  received  or  rejected.  The  rule 
in  such  cases  has  been  judicially  stated  thus :  Where  there  can  be 
no  real  doubt  as  to  how  the  premises  should  be  located  according 
to  certain  and  known  boundaries  described  in  the  deed,  to  estab- 
lish a  practical  location  different  therefrom,  which  shall  deprive 
tlie  paily  claiming  nnder  the  deed  of  his  legal  rights,  there  must 
be  either  a  location  which  has  been  acquiesced  in  for  a  sufficient 
length  of  time  to  har  a  right  of  entry  under  the  statute  of  limita- 


EVIDENCE  IX  nOUXDARY  CASES.  289 

tions  in  relation  to  real  estate,  or  the  erroneous  line  must  have 
heen  agreed  njyon  hehoeen  the  parties  claiming  the  land  on  both 
sides  thereof,  or  the  party  whose  right  is  to  l)e  ban-ed  must  have 
silently  looked  on,  and  seen  the  other  party  doing  acts,  or  subject- 
ing himself  to  expenses  in  relation  to  the  land  on  the  opposite  side; 
of  the  line,  which  W()uld  be  an  injury  to  him,  and  which  he  would 
not  have  done  if  the  line  had  not  been  so  located  ;  in  which  ease, 
it  has  been  said,  perhaj)s  a  grant  laighl  he  j)re8umed  within  the 
statutoi-y  limit  {Adams  v.  Rockv^ell,  10  Wend,  i?.,  285,  note).  But 
to  establish  a  practical  location  which  is  to  divest  a  party  of  a 
clear  and  conceded  title  l)y  deed,  the  extent  of  which  is  free  from 
all  aml)iguity  or  doubt,  the  evidence  establishing  such  location 
should  be  clear,  positive  and  unequivocal.  In  the  language  of  an 
eminent  judge,  there  can  be  no  doubt  that  a  line  run  with  the 
full  knowledge  of  all  the  adjoining  owners,  or  under  circumstances 
from  wliich  such  knowledge  may  be  reasonably  inferred,  clearly 
designated,  and  generally  recognized  and  acquiesced  in  by  those 
concerned,  by  repeated  and  unequivocal  acts  for  a  long  period;, 
must  control,  and  cannot  be  distui'ljcd,  whether  it  passes  through 
cultivated  or  wihl  lands.  It  would  be  most  unreasonable  to  denv 
to  the  owners  of  uncultivated  and  wild  lands  the  right  to  settle  their 
Common  boundary  line;  and  if  they  c;^n  do  that  by  positive  agree- 
ment, such  agreement  may  be  inferred  from  their  unequivocal 
acts,  and  is  as  operative  when  thus  proved  as  if  it  had  been 
inserted  in  a  deed.  In  such  cases,  the  establishment  of  a  line  is 
not  deemed  to  be,  nor  does  it  acquire  validity  as  a  convevance  of 
a  new  title,  but  it  simply  ascertains  and  determines  the  extent  of 
lands  held  under  pre-existing  titles.  It  was  accordingly  held  in 
the  case  that  recognition  of  and  acquiescence  in  the  settlement  of 
a  line  by  the  trustees  of  Eochester,  holding  the  legal  title,  and,  by 
their  cestuis  que  trust,  the  inhabitants  of  the  town  tor  more  than, 
twenty-five  years,  is  conclusive,  without  attributing  any  effect  to 
the  settlement  deed,  more  than  if  a  parol  agreement  between  the 
pai-ties  as  to  the  boundary.  It  was  further  decided  that  the  effect 
of  such  acquiescence  is  not  confined  to  parts  of  the  line  where 
there  had  been  actual  occupation,  or  other  distinct  act  of  claim  or 
recognition  ;  but  a  line  ran  with  such  publicity,  clearly  designated 
and  generally  recognized  and  acquiesced  in  by  those  concerned  by 
repeated  and  unequivocal  acts,  for  so  long  a  period  (over  seventy 
3'ears  in  the  case  under  consideration),  must  control,  whether  it 
37 


290  LAW  OF  BOUXDARIES. 

passes  tlirougli  cultivated  or  wild  lands  {Runt  v.  Jo/inson,  19  i\^. 
1".  Ji.,  279;  hut  vide  Townsend  v.  Ilayt^  51  ih.^  656). 

It  was  laid  down  in  the  late  Court  of  Errors  of  the  State  of  ^ew 
York  that,  to  deprive  a  man  of  his  absolute  right  to  the  unques- 
tioned fee  of  his  land,  according  to  the  doctrine  of  the  courts, 
regardless  of  or  according  to  the  construction  which  they  have 
given  to  the  statute  for  the  prevention  of  frauds  and  perjuries,  :t 
should  appear  most  clear  and  distinct,  without  the  shadow  of  a 
doubt,  and  bj  testimony  the  most  convincing  and  satisfactory,  that 
there  was  an  express  agreement  made  between  the  owners  of  the 
adjoining  lands,  deliberately  settling  the  exact,  precise  line  or 
boundary  or  location  between  them,  and  an  acquiescence  therein 
for  a  considerable  time  j  or,  in  the  absence  of  proof  of  such  agree- 
ment, it  should  be  as  clearly,  distinctly  and  satisfactorily  shown 
that  the  party  claiming  has  had  possession  of  the  lands  claimed  up 
to  a  certain  visible  known  line,  witli  the  express  knowledge  and 
assent  of  the  owner  of  the  adjoining  lands,  and  his  acquiescence 
in  such  possession,  adverse  to  and  in  defiance  of  his  rights;  and 
this  for  a  considerahle  time.  What  this  considerable  time  is  has 
not  been  limited  or  defined,  is  quite  vague  and  uncertain,  and 
must  necessarily  depend  upon  the  particular  circumstances  of  each 
case.  In  all  cases  in  which  practical  locations  have  been  con- 
firmed upon  evidence  of  this  kind,  the  acquiescence  has  continued 
for  a  long  period,  —  rarely  less  than  twenty  years.  In  one  case 
the  erroneous  line  had  been  acquiesced  in  thirt3--six  years  {Jaclison 
V,  Boiven,  1  Caines'  i?.,  35S) ;  in  another  it  was  forty  years  {Jack- 
son V.  Yedde/',  3  Johns.  7?.,  8) ;  in  another  it  was  thirty-eight 
years  {Jackson  v.  Dieffendorf,  3  Johns.  It.,  269) ;  in  another  it 
was  fortj'-one  years  {Jackson  v.  2fcCaU,  10  Johns.  li.,  377) ;  and 
in  the  case  of  Hunt  v.  Johnson.,  before  referred  to,  the  time  was 
seventy  years ;  while  in  one  case  an  acquiescence  of  four  or  five 
years  {Kip  v.  Norton.,  12  Wend.  R.,  127),  and  in  another  an 
acquiescence  of  eleven  years  {Adams  v.  Rockwell,  16  Wend.  R., 
285),  were  held  insufficient. 

In  I'espect  to  practical  location,  Chief  Justice  Savage  said,  in 
one  case :  "  Cases  of  this  description  (cases  of  location  and  acqui- 
escence) have  been  frequently  before  the  court.  The  principle 
upon  which  they  have  all  been  decided  is  that,  where  parties  agree 
upon  a  division  line,  either  expressly  or  by  long  acquiescence, 
rsuch   line    shall   not    be    disturbed ;    buildings    and  permanent 


EVIDEKCE  TN  BOUXnARY  CASES.  291 

iinpi-ovemeiits  may  be  made  upon  tlie  faith  of  tlie  location  of  the 
line;  transfers  may  be  made,  and  to  permit  such  lines  to  be 
altered  might  be  productive  of  incalculable  injury"  {2£cCormiek 
V,  Barnum,  10  Wend.  li.,  104).  Again,  in  another  case,  the 
same  distinguished  judge  repeated  the  doctrine:  "An  assent  to  a 
location  must  be  either  express  or  implied.  If  there  is  a  disputed 
line  between  two  adjoining  proprietors  of  land,  it  may  be  settled 
between  them  by  a  location  made  by  both,  or  made  by  one  and 
acquiesced  in  by  the  other,  for  so  long  a  time  as  to  be  evidence  of 
an  agreement  to  the  line.  There  can  bo  no  doubt  that  an  express 
parol  agreement  to  settle  a  disputed  or  unsettled  line  is  valid,  if 
executed  immediately,  and  possession  accompanies  and  follows 
such  agreement.  So,  also,  where  there  has  been  no  express  agree- 
ment, long  acquiescence  by  one  in  the  line  assumed  by  the  other 
is  evidence  of  an  agreement"  {Kij)  v.  Norton.,  12  Wend.  R.,  127). 
And  it  was  said  by  the  court,  in  an  early  case  before  the  old 
Supreme  Court  of  the  State  of  N  ew  York :  "  After  the  parties 
have  deliberately  settled  a  boundary  line  between  them,  it  would 
give  too  much  encouragement  to  the  spirit  of  litigation  to  look 
beyond  such  settlement,  and  break  up  the  line  so  established 
between  them"  {Jacl'son  v.  Corlear,  11  Johns.  R.,  123). 

A  distinguished  judge  of  the  Court  of  Appeals  of  the  State  of 
New  York  excepts  to  the  ground  that  the  rule  in  question  is  based 
upon  the  idea  of  an  agreement,  express  or  implied,  as  to  the  loca- 
tion of  the  line,  and  argues  that  it  is  an  error  to  assume  that  a 
parol  agreement,  either  actual  or  supposed,  fixing  the  boundaries 
to  lands,  lies  at  the  foundation  of  the  rule.  He  says:  "It  is  true 
that  several  of  the  cases  make  this  suggestion,  and  speak  of  the 
long  acquiescence  of  the  parties  as  affording  evidence  of  such  an 
agreement.  It  is  difficult,  however,  to  support  the  rule  upon  such 
a  basis.  If  acquiescence  for  a  great  number  of  years  in  an  errone- 
ous location  is  obligatory  upon  the  parties  merely  as  evidence  of 
a  previous  parol  agreement,  then  it  must  follow  that  any  other 
proof  establishing  such  an  agreement  would  be  equally  conclusive 
upon  them.  If  it  is  the  agreement  which  binds,  the  nature  of  the 
proof,  provided  it  be  competent,  is  of  course  immaterial.  *  *  * 
It  seems  impossible  to  hold  that  a  mere  parol  agreement,  adopting 
a  line  different  from  that  described  in  the  deed,  is  obligatory  with- 
out violating  the  statute  of  frauds,  both  in  its  letter  and  spirit. 
*     *     *     The  rule  seems  to  have   been   adopted   as  a  rule  of 


292  LAW   OF  BOUNDARIES. 

repose,  with  a  view  to  the  quieting  of  titles;  and  rests  -npon  the 
same  reason  as  our  statute  prohibiting  the  disturbance  of  an 
adverse  possession  which  has  continued  for  twenty  years."  And 
the  views  of  the  learned  judge  were  adopted  as  the  doctrine  .of 
the  court ;  and  it  was  accordingly  held  that  the  acquiescence  of 
adjoining  proprietors  for  forty  years  in  the  practical  location  of  a 
boundary  line  between  their  lands  is  conclusive,  although  it  be 
proved  that  such  location  was  originallj^  made  under  an  agree- 
ment resulting  from  a  mutual  mistake  as  to  facts.  It  was,  how- 
ever, conceded  in  the  case  that  there  were  cases  in  which  an 
express  agreement,  recognizing  an  erroneous  boundary,  will  con- 
clude a  party;  as  where  tlie  other  party,  acting  upon  the  faith  of 
such  agreement,  has  made  expensive  improvements,  the  benefit 
of  which  will  be  lost  to  him  if  the  line  is  disturbed.  But  it  was 
claimed  that  such  cases,  if  they  exist  at  all,  rest  upon  tlie  principle 
oi'  estojj'jxl  in  pais  {Baldwin  v.  Br'own,  1&  N.  Y.  R.,  351)  ;  and 
vid''  Tyler  on  Ejectment  and  Adverse  Enjoyment,  571-575). 

The  Supreme  Court  of  New  Hampshire  has  declared  the  doc- 
trine, that  a  practical  location  is  but  an  actual  designation  by  the 
parties,  upon  the  ground,  of  the  monuments  and  bounds  called  for 
in  a  deed  ;  and  it  was  held  in  the  same  case  that  prior  negotiations 
in  regard  to  the  boundaries  of  land  will  not  be  admissible  to  con- 
trol the  bouudai'ies  afterward  delivered  (  Wells  v.  Jackson,  etc.,  Co., 
47  N.  II.  B.,  235).  And  the  Supreme  Court  of  Texas  has 
I'eccntly  affirmed  thac,  although  the  presuniption  in  favor  of  a 
boundary  line  acquiesced  in  by  adjoining  2:)ropi'ietors  is  strength- 
ened by  lapse  of  time,  there  is  no  pei'iod  fixed  by  the  Texas 
statute  which  will  render  the  presumption  conclusive.  Each  case, 
it  was  said,  must  furnish  its  own  circumstances  modifying  the  con- 
clusiveness of  the  presumption  {Floyd  v.  Rice,  28  Texas  R.,  341). 

The  Supreme  Court  of  California  has  held  that,  if  either  of  one 
or  two  or  more  objects  will  answer  the  call  of  a  deed,  so  that  the 
line  will  run  in  two  or  more  positions  and  still  harmonize  with 
the  other  calls,  the  parties  to  the  deed  may  adopt  either  line,  and, 
where  one  is  thus  establislied,  that  it  concludes  both  parties.  But 
it  was  said,  that  acquiescence  of  tlie  parties  fur  tlie  term  of  five 
years  in  the  line  thus  established  would  probably  be  requisite  to 
give  validity  to  a  line  not  located  according  to  the  calls  of  the 
deed  ;  but  that,  where  the  parties,  by  running  and  marking  the 
line  upon  the  land,  identify  a  call  which  from  the  language  of  the 


EVIDEXCE  IN  BOUXDAIiY  CASES.  293 

deed  is  left  in  uncertalntj,  acquiescence  will  add  nothing  to  the 
conchisiveness  of  the  location  of  the  line  [Ilasthigs  v.  Stacl',  3C 
Cal.  R.,  122). 

Jt  has  been  declared  in  several  cases  that,  if  a  dividing  line  be 
settled  by  parol  agreement  and  actual  location  between  the  owners 
of  adjoining  tracts  of  land,  such  location  will  be  received  as  strong- 
evidence  of  the  accuracy  of  the  line  thus  established,  though  it  is 
not  conclusive  to  prevent  either  party  from  sliowing  that  it  was 
settled  erroneously  {Gove  v.  Richardson,  4  Greenl.  R.,  327; 
Avery  v,  Bau?n,  Wrighfs  i?.,  576).  And  the  Court  of  Appeals 
of  the  State  of  New  York  have  recently  decided  that  practical 
location  or  an  acquiescence,  for  a  less  term  than  the  statutory 
period  to  bar  an  entry,  in  an  erroneous  boundarj"  line  cannot  be 
claimed  to  the  exclusion  of  evidence  of  the  true  line,  where  the 
premises  were  wild  and  uncultivated  and  practically  unoccupied 
{Toiomend  v.  Ilayt,  bl  N.  Y.  R.,  656).  And  the  same  dis- 
tinguished court  have  also  lately  held  that  a  parol  assent  of  one 
of  tlie  parties,  as  to  the  location  of  a  boundary  fence  betw^een 
adjoining  owners,  and  the  actual  erection  of  the  fence  by  the 
other,  in  accordance  with  such  assent,  followed  by  mutual  occupa- 
tion, and  acquiescence  in  such  location  of  tlie  boundary  for  a  few 
Dioiiths,  is  not  sufficient  to  change  the  true  line,  or  to  preclude  the 
assenting  party  from  asserting  his  rights,  in  accordance  with  such 
true  line.  And  one  of  the  learned  judges  stated  that  mutual  con- 
sent to  the  location  of  a  boundary  in  dispute,  followed  by  long 
acquiescence  and  by  mutual  occupation  in  conformity  therewith, 
liad  been  held  to  conclude  both  parties,  but  that  such  acquiescence 
must  have  continued  for  a  lotig  [teriod,  scarcel^^  less  than  that  of 
the  statutorj^  period,  to  bar  an  entry  {Reed  v.  3fcConet,4:i  JV.  Y. 
R.,  435).  And  the  same  doctrine  was  held  in  the  same  court  at  a 
little  later  date,  when  it  was  declared  that,  to  constitute  a  practi- 
cal location  of  a  lot,  or  line,  the  mutual  act  and  acquiescence  of  the 
paities  is  requisite;  that  it  must  be  actually  located  and  acquiesced 
in  for  a  long  tune, probaJjly  not  less  than  twenty  years,  the  statu- 
tory period  in  New  York  to  mature  a  title  by  adverse  possession. 
And  it  was  furtlier  held,  in  the  same  case,  that  to  estop  a  party 
from  asserting  his  title  to  lands,  on  the  ground  that  he  has  encour- 
aged and  permitted  another  to  nwike  valuable  improvements  near 
them,  it  is  not  enough  that  the  premises  are  convenient,  or  even 
beneficial  to  such  other  party  ;  that  they  must  be  so  far  essential 


294  LAW  OF  BOUNDARIES. 

that  it  would  work  material  and  sei-ious  mischief  to  the  party  to 
allow  the  claim  {Corning  v.  The  Troy  Iron  and  Nail  Factory,  4-i 
N.  Y.  H.,  577 ;  aiid  vide  Ray  nor  v.  Timerson,  51  Barh.  i?., 
517).  After  the  original  monuments  are  gone,  and  such  a  period 
of  time  has  elapsed  that  no  one  can  be  found  who  remembers  to 
have  seen  them,  or  can  testify  to  their  location,  uniform  continued 
occupancy,  by  buildings,  fences  or  other  equivalent  indications  of 
ownership,  is  evidence  that  the  land  was  located  according  to  the 
original  monuments  {Ctitts  v.  King,  5  Greenl.  R.,  -ISQ).  But 
where  the  description  of  the  premises  conveyed  in  a  deed  is  suffi- 
ciently certain  by  reference  to  other  deeds  and  monuments  exist- 
ing when  those  deeds  were  made,  evidence  that  the  grantor,  when 
he  executed  the  deed,  pointed  out  a  monument  as  a  boundar^^, 
which  was  not  the  true  one,  would  not  amount  to  a  practical  loca- 
tion, nor  limit  the  operation  of  the  deed  to  the  monument  thus 
pointed  out,  there  being  no  agreement  or  assent  on  the  part  of 
the  grantee  {C lough  v.  Boionian,  io  JV.  II.  R.,  504). 


CHAPTER  XXIY. 

EVIDENCE    IN    BOUNDARY  CASES USAGE  AND  HEARSAY  TESTISTONY 

DECLARATIONS  OF  PARTIES  TO  GRANTS  AND  DECEASED    WITNESSES. 

The  rule  is  well  settled  that  all  ancient  grants  may  be  explained 
by  evidence  of  modern  usage,  in  order  to  discover  what  passed  by 
such  documents.  The  doctrine  has  more  frequently  been  applied 
in  Great  Britain  than  in  this  country,  but  it  is  of  universal  appli- 
cation. In  England,  modern  acts  of  ownership  have  been  adniit- 
ted  to  show  that  ancient  grants  of  King  John  and  Edward  I 
included  the  sea-coast  down  to  low-water  mark  {The  Dnke  of 
Beavfort  v.  The  Mayor  of  Swansea,  3  Exc?iequer  ^.,413;  The 
Attorney- General  v.  Jones,  2  Ilurlstone  <&  Coltmaii^s  R.,  347; 
U Estrange  v.  Rowe,  4  Foster  &  Firday son's  R.,  104S) ;  to  show 
whether  the  words  "  river  L."  in  an  ancient  patent  comprised  the 
bed  of  the  river  down  to  the  point  where  it  reached  the  sea,  or 
only  down  to  a  certain  ford  some  distance  up  the  river  {Marquis 
of  Donegal  v.  lord  Templemore,  9  Irish  Corn.  Laio  R.,  374; 
In  re  Belfast  Dock,  1  Irish  Eq.  R.,  128) ;  also  to  show  that  the 


EVIDENCE  rx  BOU^LARY  CASES.  295 

Bea-sliore  is  parcel  of  a  manor  {CaVmadij  v.  Rowe,  6  Com.  Bench 
7?.,  861 ;  and  vide  Waterjjarh  v.  Fennell^  7  House  of  Lords 
Cases,  650,  684;  Attorney- General  v.  Drummond,  1  Drury  <& 
Walsh's  R.,  353 ;  Baird  v.  Fortune,  7  Jurist,  N.  S.,  926). 

Some  cases  to  the  same  effect  ai-e  to  be  found  in  the  American 
reports,  though  the  doctrine  is  there  more  generally  applied  to 
deeds  which  are  ambiguous  or  doubtful  in  their  terms  than  to 
deeds  which  may  be  considered  ancient.  In  an  early  case  before 
the  old  Supreme  Court  of  the  State  of  New  York,  the  question 
arose  under  a  deed  which  gave  the  grantee  the  privilege  of  cutting 
timber,  for  building  on  the  premises,  from  the  woods  of  the 
grantor.  The  court  held  that  evidence  of  usage,  with  the  know- 
ledge of  the  grantee  and  his  heirs,  to  cut  timber  for  fencing,  was 
admissible  to  show  the  intention  of  the  parties  to  apply  the  word 
building  to  the  making  of  fences.  And  Spencer,  Justice,  in  giv- 
ing the  opinion  of  the  court,  says,  if  the  words  are  equivocal,  evi- 
dence of  usage  ought  to  be  admitted  as  the  best  expositor  of  the 
intention  of  the  parties;  but  if  the  words  of  a  deed  are  clear  and 
precise,  leaving  no  doubt  of  the  intention  of  the  parties,  usage 
will  not  aid  in  the  exposition,  and  ought  not  to  be  admitted.  And 
the  learned  justice  goes  on  to  cite  cases  to  show  that  such  evidence 
is  ]tr<)per  oidy  in  cases  of  ancient  deeds,  and  where  there  is  an 
uncertainty  as  to  what  was  meant  by  the  terms  made  use  of  by  the 
par-ties  (^Livingston  v.  Ten  Broeck,  16  Johns.  R.,  23).  This  case 
has  often  been  referred  to  by  the  courts,  both  of  this  country  and 
EnglamJ,  and  its  doctrines  have  been  invariably  approved.  Of 
course,  it  is  well  understood  that  deeds  are  to  be  expounded  by 
their  terms  where  there  is  no  ambiguity,  and  neither  jiarol  evi- 
dence nor  usage  can  be  admitted  to  vary  or  contradict  a  written 
instrument.  But  where  the  words  of  a  deed,  and  especially  those 
of  an  ancient  deed,  are  equivocal  or  doubtful,  the  usage  of  the 
parties  under  the  deed  is  admissible  to  explain  them. 

xinother  leading  case  in  England  may  be  cited  upon  the  same 
question,  in  which  there  was  strong  and  uniforin  evidence  that 
the  castle  of  A.  had,  for  two  centuries  past,  formed  part  of  the 
hundred  of  Broxtowe.  The  court  held  that  the  mention  in 
Doomsday  Book  of  the  town  of  A.  previously  to  the  enumera- 
tion of  the  hundreds  in  the  county,  inquisitions  taken  by  jurors  of 
the  town  of  A.  upon  deaths  in  the  castle  of  A.,  and  a  charter 
erecting  the  town  of  A.  into  a  county  of  itself,  with  the  special 


296  i/.4TI'   OF  BOUyDARIES. 

exception  of  the  castle  of  A.,  were  not  so  clearly  inconsistent  with 
the  long  usage  and  reputation  in  modern  times  as  to  negative  the 
inference  that  the  castle  was  part  of  the  hundred  {The  JJiike  of 
Newcastle  v.  Hundred  of  Broxtoive,  1  Neville  <&  Manniiufs  B., 
507;  S.  C,  -i  Barn,  d;  Adolph.  i?.,  273). 

This  brings  us  naturally  to  the  consideration  of  the  admissi- 
bility of  hearsay  evidence  on  questions  of  boundaries.  And  upon 
this  subject  it  is  an  old  rule  that,  in  questions  concerning  public 
rights,  connnon  reputation  is  admitted  in  evidence,  and  this 
extends  to  questions  upon  boundary  between  parishes  or  manors. 
But  when  the  question  is  upon  a  boundary  between  private  indi- 
viduals difi'erent  principles  are  involved,  although,  in  the  latter 
case,  the  evidence  is  often  received.  The  learned  editors  of  "Notes 
to  Phillips'  Treatise  on  the  Law  of  Evidence"  regard  the  admissi- 
bility of  hearsay  evidence  on  questions  of  public  right  as  well 
established  upon  authority;  so  much  so,  "that  judges,  the  most 
fastidious  in  regard  to  this  kind  of  evidence,  do  not  pretend  to 
dispute  its  competency,  however  widely  the_y  may  differ  upon  its 
force  and  elfect ;"  and  they  refer  to  several  English  authorities 
Avliich  exenq)lify  the  doctrine.  But,  they  observe,  "  private  rights 
are  cntii-ely  another  affair.  How  far  hearsay  may  be  brought  to 
bear  u])on  those  which  ai'c  of  an  incorporeal  nature  we  shall 
leave  mainly  to  the  discussions  in  the  text.  These  rights  are  a 
branch  of  learning  more  peculiarly  belonging  to  England,  where 
they  so  extensively  prevail,  and  dej)end  so  much  on  ancient  usage 
as  often  to  call  for  hearsay,  which  is  almost  the  only  remnant  of 
evidence  left.  Jt  may  be  set  down,  therefore,  that  on  this  subject 
the  limits  of  hearsay  evidence  have  been  as  far  enlarged  as  con- 
siderations of  safety  would  wan-ant.  In  going  beyond  them,  we 
should  violate  the  best  dictates  of  experietuie. 

"  But  in  settling  the  litigated  boundaries  of  corporeal  property 
no  courts  have,  probably,  been  more  extensively  engaged,  or  upon 
questions  of  greater  difficulty,  than  the  American.  In  conducting 
the  inquiiy,  therefore,  how  far  can  hearsay  be  brought  to  bear  on 
the  l>oundaries  of  private  pro])erty,  while  the  English  decisions 
are,  doubtless,  as  usual,  very  high  evidence  of  the  common  law  ; 
yet  American  courts  ought  not  hastily  to  be  condemned,  though 
they  may  appear  to  have  gone  beyond  them.  It  will,  we  think, 
be  found  that  England  has  furnished  the  principle  upon  which  the 
American  cases  may  be  sustained  to  a  certain  extent ;  though  we 


EVIDEACE  IX  BOUXDAIir  CASES.  297 

have  in  some  respects  gone  far  beyond  them.     *     *     *     It  wil] 
be  seen   by  the  professional  reader  that  not  only  certain  lots  of 
land,  tracts  of  land  or  patents,  may  thus  become  the  subject  of 
hearsay  evidence,  but  their  lines,  and  objects  in  their  ambit,  may 
be  and  very  commonly  are  dependent  entirely  on   hearsay.     A 
patent  or  farm  is  granted  to  run  along  the  Hudson  river.     Hear- 
say or  reputation  comes  in  to  tell  us  what  stream  bears  that  name, 
and  to  distinguish  it  from   its   tributaries,  the  Sacundaga  or  the 
Scaroon.     The   Kayaderosseras  patent  was  granted    running  on 
one  line  to  the  soidh-ioestmost  head  of  a  creek  entitled  Kayade- 
rosseras.    Public  reputation  was  called  in  to  fix  the  real  head  of 
that  creek,  and  distinguish  it  from  the  head  of  the  Coesa  creek, 
which  had  been  assumed  as  the  true  object  of  the  line  in  a  survey 
for  the  defendants  {Brandt  ex  dem.  Walton^.  Ogden,  1  Johns,  i?., 
156,  \b7,per  Spencer,  J.).     Another  object  in  the  same  patent 
was  thL'  third  falls  of  Albany  river  (Hudson),  and  reputation  for 
forty  years  was  called  in  to  determine  whether  the  third  falls 
wei^  Baker's  or  Fort  Miller  falls  on  the  Hudson  (3  Cain  B.,  6, 
S.  C).     In  this  view  of  the  question   Henderson,  J.,  speaks  m 
Den  ex  dem.  Tate  v.  Southard  (1  Hawks,  45,  47) :  ^  Boundaries,' 
says  the  judge,  'frequently  exist  in  common  reputation;  and  it  is 
for  that  reason  that  hearsay  is  evidence  upon  the  question   of 
boundary.      It    would,    therefore,   have   been    sufficient    for   the 
defendant  to  have  shown  that  it  was  the  common  reputation  and 
imderstanding  of  the  neighborhood  that  his  land  was  bounded  by 
the  lines  of  surrounding  tracts.'     Evidence  was  also  received  in 
that  cause,  that  two  ditierent  persons,  now  (at  the  trial)  dead,  had 
the  one  shown  a  branch  to  the  witness  as  one  line,  and  another 
a  certain  place  in  the  road  as  another  line  of  the  land  in  dispute. 
*     *     *     It  is  obvious,  as  we  have  seen,  that,  to  a  certain  extent, 
hearsay    must    be    adopted    as   evidence    in     the    designation   of 
boundaries.     They  are,  many  times,  the  mere  creatures  of  general 
reputation  (2  Roll.  Ahr.,  186,  pi.  5  ;  17  Fm.,  86,  pi.  5).     Where 
this  is  the  case,  all  courts  must  receive  evidence  of  general  hear- 
say "  (I  Coioen  cfc  llUrs  iVo^^^, '629-63 1). 

"The  Supreme  Court  of  Florida,  a  few  years  since,  held  that 
hearsay  evidence  of  ancient  boundaries  is  admissible,  when  the 
lapse  of  time  is  so  great  as  to  render  it  difficult  to  prove  a  boundary 
line  by  the  existence  of  the  positive  landmarks,  or  other  evidence 
than  hearsay  {Daggett  v.  Wllley,  6  Florida  B.,  482).  And  the 
38 


298  -^'41^   ^^  BOUNDARIES. 

Snproine  Court  of  Alabama  lias  decided  that  the  boundaries  of  a 
puhlio  lot  may  be  proved  by  ,£jeiieral  reputation.  But  whether 
such  evidence  would  be  admissible  in  the  case  of  ?^  prbmte  lot,  the 
court  raised  a  quoire,  and  left  it  undecided  {Fanner's  Heirs  v. 
31a yor  of  MoVde,  8  Ala.  /?.,  279). 

Mr.  Justice  M'Lean  well  expresses  the  doctrine  upon  this  sub- 
ject, in  a  case  before  the  Supreme  Court  of  the  United  States  in 
1832.  lie  says:  "That  boundaries  maybe  proved  by  hearsay 
testimony,  is  a  rule  well  settled  ;  and  the  necessity  or  propriety  of 
which  is  not  now  questioned.  Some  difference  of  opinion  may 
exist  as  to  the  application  of  this  rule,  but  there  can  be  none  as  to 
its  legal  force. 

"  Landmai'ks  are  frequently  formed  of  perishable  materials,  which 
pass  away  with  the  generation  in  which  they  are  made.  By  the 
improvement  of  the  country,  and  from  other  causes,  they  are  often 
destroyed.  It  is  therefore  important,  in  many  cases,  tliat  hearsay  or 
reputation  should  be  received  to  establisli  ancient  boundaries  ;  but 
sucli  testimony  must  be  pertinent,  and  material  to  the  issue 
between  the  parties.  If  it  have  no  relation  to  the  subject,  or  if  it 
refer  to  a  fact  which  is  immaterial  to  the  point  of  inquiry,  it  ought 
not  to  be  admitted  "  {Boardman  v.  Lessees  of  Reed  and  Ford,  6 
Peters''  li.,  328,341).  And  in  an  early  case  in  Virginia,  involving 
the  boundary  of  a  corner  lot  in  the  city  of  Richmond,  the  court 
said  :  "  If  the  original  survey  of  the  town  was  erroneous,  either 
because  it  was  made  without  regard  to  horizontal  distances,  or 
from  other  causes  or  accidents,  and  the  property  has  been  sold, 
and  held  according  to  such  survey,  it  is  now  too  late  to  correct 
such  error.  Ancient  reputation  and  possession,  in  respect  to 
boundaries  of  streets,  are  entitled  to  infinitely  more  respect,  in 
deciding  upon  the  boundaries  of  the  lots,  than  any  experimental 
survey  that  can  be  made.  If  not,  the  whole  cit}^,  and  all  other 
towns,  would  be  thrown  into  the  utmost  confusion  "  {Ralston  v. 
Miller,  3  Randolpfis  R.,  44,  49). 

The  admissibility  and  influence  of  hearsay  and  reputation,  in 
respect  to  boundaries,  was  examined  by  Judge  "Washington,  in  the 
Circuit  Court  of  the  United  States,  in  a  case  which  arose  in  Penn- 
sylvania, and  in  which  two  surveys  were  given  in  evidence  which 
differed  in  important  particulars.  On  the  subject  of  these  sur- 
veys, and  what  would  be  proper  evidence  in  such  circumstances, 
the  learned  judge  said  ;  "No  gentleman  of  the  profession,  who  is 


EVIDENCE  IN  BOUNDARY  CASES.  299 

at  all  conversant  with  land  trials,  can  be  ignorant  that  the  joursea 
and  distances  laid  down  in  a  survey,  especially  if  it  be  ancient, 
are  never  in  practice  considered  as  conclusive ;  but,  on  the  con- 
trary, they  are  liable  to  be  materially  changed  by  oi-al  proof,  or 
other  evidence  tending  to  prove  that  the  documentary  lines  are 
not  those  actually  run.  How  often  have  we  known  reputed 
boundaries,  proved  by  the  testimony  of  aged  witnesses,  and  even 
by  hearsay  evidence,  established  in  opposition  to  the  most  precise 
calls  of  an  ancient  patent.  Such  evidence  has  been  constantly 
received  ;  and  distances  have  been  lengthened  or  shortened  with- 
out the  slighest  regard  to  the  calls  of  the  patent.  The  reason  is 
obvious ;  it  is  not  the  lines  reputed,  but  the  lines  actually  run  by 
the  surveyor,  which  vest  in  the  patentee  the  area  included  within 
these  lines.  The  survey  returned,  or  the  patent,  is  the  evidence 
of  the  former;  natural  niai'ks  or  reputation  is,  in  almost  all  cases, 
the  evidence  of  the  latter.  The  mistakes  committed  bj^  surveyors 
and  chain  carriers,  more  particularly  in  an  unsettled  counti-y  and 
wnlderness,  have  been  so  common  and  are  so  generally  acknow- 
ledged as  to  have  given  rise  to  a  principle  of  law,  as  well  settled 
as  any  which  enters  into  the  land  titles  of  this  country  ;  which  is, 
that  when  the  mistake  is  shown  by  satisfactory  proof,  courts  of 
law  as  well  as  courts  of  equity  have  looked  beyond  the  patent  to 
correct  it.  It  will  readily  be  admitted  that  such  evidence  should 
be  cautiously  received,  if  it  should  have  a  preponderating  influence 
in  determining  the  question  of  boundary.  Subsequent  locaters 
look,  in  the  flrst  instance,  to  the  survey  as  made  and  returned,  for 
a  demarkation  of  the  tract ;  with  which  they  must  not  interfere. 
But  if  a  mistake  is  apparent  upon  the  face  of  the  survey,  taken 
in  connection  with  the  natural  and  artificial  marks  on  the  ground, 
if  the  reputation  of  the  neighborhood  has  assigned  to  the  tract 
of  land  so  surveyed  boundaries  different  from  those  delineated  on 
the  survey  returned,  a  subsequent  location  is  so  fur  affected  by 
notice  of  the  real  boundaries  of  the  tract  on  which  it  would 
adjoin,  that  a  claimant  under  it  cannot,  even  in  a  court  of  equity, 
set  up  liis  posterior  equitable  title  against  the  legal  or  equitable 
title  of  the  first  locater.  In  short,  he  cannot  assert  that  he  was  a 
purchaser  without  notice,  in  the  face  of  strong  evidence  to  the  con- 
trary" {Co7in.  v.  Fetm.,  1  Peters'  C.  C.  7?.,  496). 

Tiie  Supreme  Court  of  Errors  of  the  State  of  Connecticut  have 
decided,  as  a  point  of  local  law  at  least,  that  traditionary  evidence 


300  LAW  OF  BOUM>ARIES. 

is  admissible  to  prove  pi'ivate  boundaries.  In  a  case  before  the 
Court  in  1839,  Churcli,  J.,  said  :  "In  England  such  testimony  has 
always  been  i-eeeived  to  prove  facts  of  a  public  or  general  nature, 
as  in  the  present  case.  In  this  State  we  have  extended  it  yet  fur- 
ther, and  have  admitted  it  to  prove  tlie  boundaries  of  lands 
between  individual  proprietors"  {Wooster  v.  Butler,  13  Conn.  7?., 
309,  315).  And  in  aiu)ther  case,  decided  by  the  court  in  18-15, 
Storrs,  J.,  said  :  ''  Within  whatever  limits  the  rule  of  evidence  as 
to  the  admissibility  of  reputation  on  questions  of  boundary  is 
I'esti'icted  elsewhere,  it  is  well  settled  in  this  State  that  general 
reputation  is  admissible  for  the  purpose  of  showing  not  only  public 
boundaries,  such  as  those  between  towns,  societies,  parishes  and 
other  public  territorial  divisions,  but  also  the  boundaries  of  lands 
of  individual  proprietors"  {Kinney  v.  Farntsioorth,  17  Conn.  R., 
355,  363 ;  and  vide,  also,  H'ujley  v.  Btdwell,  9  ih.,  417). 

The  same  doctrine  has  been  expressly  laid  down  in  the  State  of 
Korth  Carolina.  In  one  case  before  the  Supreme  Court  of  the 
State  the  learned  chief  justice  observed:  "We  have,  in  questions 
of  boundary,  given  to  the  single  declarations  of  a  deceased  indivi- 
dual, as  to  a  line  or  corner,  the  weight  of  common  reputation,  and 
permitted  such  declarations  to  be  proven,  under  the  rule  that,  in 
questions  of  boundary,  hearsay  is  evidence.  Whether  this  is 
within  the  spirit  and  reason  of  the  rule,  it  is  now  too  late  to 
inquire.  It  is  the  well-established  law  of  this  State.  And  if  the 
propriety  of  the  rule  was  now  res  integra,  perhaps  the  necessity  of 
the  case,  arising  from  the  situation  of  onr  country,  and  the  w^antof 
self-evident  termini  of  our  lands,  would  require  its  adoption.  For, 
although  it  sometimes  leads  to  falsehood,  it  more  often  tends  to 
the  establishment  of  truth.  From  necessity  we  have,  in  this 
instance,  sacrificed  the  principles  upon  wdiicli  the  rules  of  evidence 
are  founded "  {^Den  d.  Sasser  v.  Herring,  3  Devereaux'  Laio  B., 
310 ;  and  vide  Den  d.  Tate  v.  Southard,  1  Hawks''  B.,  45). 

The  Special  Court  of  Appeals  of  Virginia,  somewhat  recently, 
declared  that,  in  questions  of  boundary,  natural  landmarks, 
marked  lines,  and  reputed  hoimdaries,  especially  if  known  to  and 
acquiesced  in  by  the  parties  interested,  should  be  preferred  when' 
in  opposition  to  mere  magnetic  lines,  unless  there  was  a  known 
mistake  in  the  marked  line  {Coles  v.  Wooding,  2  Batton  dc 
HtatlCs  B.,  189).  Indeed,  it  is  well  settled  that  boundaries  may 
be  proved,  under  certain  circumstances,  by  hearsay  evidence;  but 


EVIDENCE  IN  BOUNDARY  CASE3.  301 

it  must  amount  to  common  tradition  or  repute  {Cherry  v.  Boyd^ 
6  LitteWs  i?.,  7).  And  neighborhood  report  can  never  be  received 
to  contradict  record  evidence  in  respect  to  boundary  or  any  other 
matter  {McCoy  v.  Galloway,  3  Ham.  Jl.,  2S3). 

On  simihir  principles  upon  wliicli  tradition  is  received  to  prove 
a  boundary,  the  declarations  of  deceased  persons,  and  sometimes 
the  statements  of  living  witnesses,  have  been  received  in  evidence 
to  establish  boundaries  of  land.  The  English  authoi-ities  are 
numerous  to  this  point ;  and  it  has  been  judicially  declared  that, 
on  questions  of  private  as  well  as  public  boundaries,  the  tendency 
of  American  decisions  is  to  admit  declarations  of  deceased  persons 
who  were  in  a  situation  to  possess  information  on  the  subject,  and 
"Nvho  were  not  interested,  even  when  the  declarations  are  no  part 
of  the  res  gestce  {Stroud  v,  Springfield,  28  Texas  R.,  O-iO ;  Great 
Falls  Company  v.  Worster,  15  JSf.  II.  7?.,  412).  And  in  another 
recent  case,  decided  by  the  Supreme  Court  of  Vermont,  it  appeared 
that  it  had  been  agreed  between  the  parties  in  interest  that  of  two 
surveys,  made  respectively  in  1806  and  1808,  the  second  was  the 
true  range  line;  and  it  appearing  that,  in  1830,  an  origiiuil  pro- 
prietor of  the  land  in  controversy,  then  an  old  man,  since  deceased, 
one  of  the  survey  committee,  and  long  the  custodian  of  the  pro- 
prietor's records,  had  at  his  house,  distant  three  or  four  miles  from 
the  land,  declared  to  the  witness,  a  surveyor  who  had  taken  a  copy 
of  the  plan  of  the  surveys,  that  "when  he  should  survey  in  the 
lifth  division,  he  would  find  two  range  lines  between  lots  ISTos.  14 
and  15,  and  that  the  west  line  was  the  true  one."  The  court  held 
this  declaration  to  be  admissible  as  evidence,  although  unaccom- 
panied by  a  pointing  out  or  showing  of  the  premises.  It  appeared 
that  the  old  man  owned  a  lot  in  the  fifth  division,  bounded  by 
the  same  range  line,  and  the  declaration  was  against  his  own 
interest ;  and  that  was  regarded  as  a  material  fact  upon  the  point 
{Potvers  V.  S'dshy,  41  Vt.  12.,  288 ;  and  vide  Smith  v.  Chajmian, 
10  Grati.  R.,  445). 

There  seems  to  be  no  doubt  of  the  rule  that,  where  the  party 
claims  title  to  the  land  in  dispute  by  adverse  possession,  the  decla- 
rations of  a  former  occupant,  under  whom  the  party  claims,  are 
admissible  as  evidence  to  characterize  his  possession  as  adverse  to 
any  title  of  the  plaintiff.  Upon  this  subject  Mr.  Greenleaf  says: 
"In  regard  to  the  declarations  of  persons  in  possession  of  land 
explanatory  of  the  character  of  their  possession,  there  has  been 


302  J^-4Tr   OF  BOUNDARIES. 

some  difference  of  opinion  ;  bnt  it  is  now  well  settled  tliat  dedara- 
tlons  in  dis].>arageriient  of  the  title  of  the  declarant  are  admissible 
as  original  evidence.  Possession  \^  prima  facie  evidence  of  seisin 
in  fee  simple;  and  the  declaration  of  the  possessor  that  he  is 
tenant  to  another,  it  is  said,  makes  most  strongly  against  his  own 
interest,  and  therefore  is  admissible.  But  no  reason  is  perceived 
M'hy  every  declaration  accompanying  the  act  of  possession,  wl:e'her 
in  disparagement  of  the  claimant's  title  or  otherwise  justifying 
his  possession,  if  made  in  good  faith,  should  not  be  received  as 
part  of  the  res  gestce  ;  leaving  its  effect  to  be  governed  by  other 
rules  of  evidence "  (1  Greenl.  Ev.,  §  109 ;  and  vide  Morss  v. 
SaUshury,  48  JV.  T.  E.,  636). 

In  a  late  case  before  the  Supreme  Court  of  the  State  of  Xew 
York  evidence  was  offered  by  the  defendant  that  he  had  claimed 
his  north  line  to  be  a  straight  line,  and  claimed  the  east  and  west 
lots  as  his ;  that  he  had  got  sixty  acres  and  the  bluff  thrown  in, 
and  these  together  run  up  to  this  straight  line  on  the  north  side ; 
that  he  claimed  a  certain  cornel-,  where  he  directed  the  fence  to 
be  fixed,  as  his  corner,  and  spoke  of  a  rock  on  or  near  the  end  of 
Pratt's  wall  as  on  his  line;  and  claimed  a  certain  pile  of  stones 
and  a  big  rock  as  his  corner ;  and  claimed  to  own  a  certain  lot, 
and  to  own  up  to  the  north  fence.  The  evidence  was  objected  to 
on  the  trial,  but  admitted,  and  the  ruling  was  affirmed  at  General 
Term.  Hogeboom,  J.,  gave  the  opinion  of  the  court,  and,  on  this 
question,  said :  "  I  am  inclined  to  think  that,  in  connection  with 
the  facts  and  circumstances  proved  in  the  case,  that  all  this  evi- 
dence was  admissible,  either  as  showing  a  claim  of  title  to  land 
which  the  defendant  or  Brandow  lield  adversely  to  the  plaintiff,  or 
as  characterizing  the  nature,  manner  and  extent  of  the  defenant's 
possession  "  {Morss  v.  Jacols,  35  IIoic.  Pr.  B.,  90,  96).  But  it 
liad  been  previously  declared  by  the  same  court  that  the  declara- 
tions of  one  in  possession  of  land  cannot  be  admitted  for  the  pur- 
pose of  showing  that  an  incumbrance  upon  the  land  existed  when 
the  person  had  sold  and  conveyed  the  land  to  a  honafide  purchaser, 
although  it  was  held  that  such  declarations  were  admissible  as 
against  a  mere  volunteer  {Burlingame  v.  EoVbins,  21  Barh.  E., 
327). 

It  has  been  declared  by  the  Supreme  Court  of  Maine  that  the 
declarations  of  a  former  owner  of  land,  made  while  he  was  pro- 
prietor of  the  estate,  respecting  the  extent  and  boundaries  thereof, 


EVIDESCE  IN  BOUNDARY  CASES.  333 

are  competent,    though   not   conch.sive   evidence    against    those 
elaiunng  under  him  [Treat  v.  StrickM,  10  Shej>   B    2U ;  and 
vide  Melvin  v.  Marshall,  2  Foster^ s  i?.,  379).     And  n.  a  well- 
considered  case,  decided  by  the  Supreme  Court  ot  Errors  ot  Con^ 
Lcticut,  it  was  said   by  Waite,  J.,  who  deli y.-ed  the  opnnon  of 
the  couA,  that,  upon  recurring  to  the  authorities,  the  rule  seemed 
to  be  well  settled  in  that  State,  "that  the  declarations  made  by 
the  owner  of  real  estate,  adverse  to  his  title,  are  adn.issjble  m  evi^ 
deuce  not  only  against  him  but  all  others  claiming  title  to  the 
sariands  uncLr  him."     After  citing  the  authorities  the  learned 
iud-e  observed:  "  So  far  the  rule  has  gone,  but  no  turther  ;  and 
'courts,  in  laying  it  down,  have  been  very  carefd  to   imit  it,  m  its 
operation,   to   cases  where   the   evidence   is   oftered   against  the 
interest  of  the  party  making  the  declarations  or  those  c  aiining 
nnder  him.     We  are  clearly  of  opinion  that  the  rule  ought  not   o 
be  extended.     The  presumption  is  that  the  declarations  ot  a  party 
as  to  his  title,  made  against  his  interest,  are  true.     I>ut,  on  the 
other  hand,  to  allow  him   to   make  declarations  in  support  of  his 
title,  and  then   give   those   declarations  in   evidence,   would,   m 
effect,  be  to  alloV  him  to  make  evidence  in  his  favor  at  his  plea- 
sure" [Smith  v.  Mai'tin,  17  Go,m.  B.,  309,  401).  _ 

It  has  been  recently  iudicially  declared,  as  before  stated,  that,  in 
questions  of  private  as  well  as  public  boundaries,  the  tendency  ot 
American  decisions  is  to  admit  declarations  of  deceased  persons 
^vho  were  in  a  situation  to  possess  information  on  the  subject,  and 
.vho  were  not  interested,  even  when  the  declarations  are  no  part 
of  the  resgestw;  although  it  was  held,  in  the  case  m  which  the 
declaration  was  made,  that  proof  of  ancient  boundaries  by  com- 
mon reputation  must  have  reference  to  a  time  a7ite  litem  motam 
[Stroud  V.  Springjidd,  28  Texas  7?.,  649).  _ 

Tlie  Supreme  Court  of  Appeals  of  the  State  of  Virginia  have 
held  that  declarations  by  a  surveyor,  or  chain-carrier,  or  other 
persons  present  at  a  survey,  of  the  acts  done  by  or  under  the 
authority  of  the  surveyor  in  making  the  survey,  if  not  made  post 
litem  motam,  and  tlie  person  is  dead,  are  admissible  evidence  upon 
a  question  of  boundary  [Overton  v.  Damsson,  1  Gratt.  ^y^^^h 
Upon  this  subject,  it  is  said  in  Cowen  &  Hill's  ^otes:  A 
majority  of  the  American  decisions  are,  it  is  true,  opposed  to  the 
objection  that  these  declarations  concerning  boundary  shall  be 
excluded,  by  reason  of  being  made  post  litem  motam.     It  existed, 


S04  LAW   OF  BOUyDARIES. 

but  appears  to  have  been  overlooked  by  counsel,  in  IlowelVs  Les- 
ttf-e  V.  Tilden  (1  liar,  cfc  JWIIen.,  84) ;  and  in  a  subsequent  case, 
liearsay  declarations  of  D.  and  liis  wife,  made  while  they  were  in 
possession,  and  after  a  dispute  had  arisen  between  thein  and  the 
adverse  claimants,  were  received  in  favor  of  one  claiming  under 
D.  and  wife,  according  to  the  very  boundaries  to  which  their  pre- 
vious declarations  related.  These  declarations  were  expressly 
objected  to  as  being  made  after  the  controversy  had  arisen  {Red- 
ding's  Lessee  v.  M'CuUin,  1  liar,  cfe  IP  Hen.,  368).  But  they 
might  perhaps  have  been  received  as  a  part  of  the  7'es  gesUe,  D. 
being  in  possession,  according  to  the  rule,  ante,  note  452,  page  596, 
et  seq.  j  though  Shepherd  v.  Tliomjyson  {infra)  is  contra.  In  other 
cases,  it  was  held  that  what  one  deceased  person  swore  under  a 
commission  to  take  evidence  respecting  the  boundaries,  which 
commission  was  irregularly  executed,  and  so  the  oath  not  receiva- 
ble as  a  deposition,  should  yet  come  in  as  hearsay  {Bladen'' s  Les- 
see V.  Cochey,  1  liar,  cfe  3! Hen.,  230;  Long'^s  Lessee  v.  Pallett, 
Ih.,  531 ;  Wee7n''s  Lessee  v.  Disney,  4  Liar,  cfi  JSV Hen.,  156).  In 
another  case,  the  court  received  mere  ex  parte  depositions,  show- 
ing the  declarations  of  the  propi'ietors  and  the  reputation  of  the 
neighborhood  as  to  a  certain  fence  being  the  division  line  between 
the  parties  litigant  {Sturgeon' s  Lessee  v.  Waugh,  2  Yeates,  476). 
So  a  voluntary  affidavit,  both  parties  being  present,  though 
objected  to,  was  received  to  show  that  a  survey  made  by  S. 
excluded  the  locus  in  quo  {Montgomery's  Lessee  v.  Dichey,  2 
Yeates,  212).  The  court  said  it  was  better  than  ordinary  hearsay 
or  reputation.  (And  see  LUley's  Lessee  v.  Klntzmiller,  Ih.,  28). 
""While  it  must  be  confessed  that  these  Maryland  and  Pennsyl- 
vania cases  have  proceeded  in  utter  disregard  of  the  rule  repudia- 
ting declarations  as  made^:>C5^  litem  motam,  yet  they  were  mostly, 
if  not  all,  made  before  this  rule  was  well  established,  even  in  Eng- 
land ;  other  and  more  recent  cases  came  back  to  that  rule.  In 
Spear  v.  Coate  (3  M'Cord,  227),  the  court  received  declarations 
touching  boundary,  made  ante,  but  rejected  those  made  post  litem 
motam,  by  the  same  witness.  *  *  *  In  all  these  cases  where 
these  declarations  have  been  received,  it  was  first  made  to  appear 
that  the  declarant  was  dead ;  and  several  cases  have  expressly 
decided  that  this  is  an  essential  condition.  *  *  *  It  is  obvious, 
however,  that,  in  this  and  all  other  cases  where  hearsay  testimony 
is  admissible,  a  distinction  must  be  made,  as  to  proving  the  death 


EVIDEXCE  IX  BOUXDART  CASES.  305 

of  declarants,  between  particnlar  declarations  coming  from  indi- 
viduals and  g-eneral  reputation.  In  the  former  case  death  must 
be  proved.  In  the  latter  it  is  never  required.  The  difference  is 
acted  upon  every  day  at  the  circuit,  in  questions  of  general  repii^ 
tation  upon  other  subjects.  *  *  *  After  the  practice  of 
receiving  particular  declarations  had  gained  a  foothold  at  the  cir- 
cuit, it  was  obvious  that  the  more  important  of  this  kind  of  posthu- 
mous  testimony  would  be  sought  at  the  hands  of  deceased  sur- 
veyors" (1  Cow.  <&  nilVs  Notes,  633,  034). 

In  an  early  case  before  the  Supreme  Court  of  Pennsylvania,  the 
plaintiff  claimed  a  parcel  of  land  according  to  the  survey  of  one 
W.,  who  was  dead,  and  his  declarations  were  received  in  evidence 
to  prove  his  survey  ;  in  which,  Tilgliman,  Ch.  J.,  said :  "  When; 
boundary  is  in  question,  what  has  been  said  by  a  deceased  person, 
is  received  in  evidence.  It  forms  an  exception  to  the  general. 
rule.  It  was  impossible  for  the  plaintiffs  to  show  the  extent  of 
their  possession  without  showing  tiie  lines  run  by  W.  Those  lines- 
were  the  plaintiffs'  boundaries ;  at  least,  such  was  their  claim.  It 
appears  to  me,  therefore,  that  what  was  said  by  W.  comes  witliin 
the  exception  which  admits  the  words  of  a  deceased  person  to  be 
given  in  evidence  in  a  matter  of  boundary"  {^Cavfuran  v.  The 
Preshyterian  Congregation  of  Cedar  Sjyring,  6  Binney's  H.,  59). 
And  in  the  c;ise  in  the  constitutional  court  of  South  Carolina, 
referred  to  in  Cowen  &  Hill's  Notes,  Colcock,.  J.,  said  :  "  It  can- 
not be  doubted  at  this  day  that  the  declarations  of  deceased  per- 
sons, who  shall  appear  to  have  been  in  a  situation  to  possess  the 
information,  shall,  on  a  question  of  boundary,,  be  received  in  evi- 
dence" {Spear  v.  Coate,  3  M' Cord's  R.,  229). 

By  the  law  of  England,  the  rule  is  more  restricted  than  in  the 
United  States.  There,  evidence  of  reputation  to  prove  a  Ijoundary 
of  j9/'2t'a^<3  estates  is  not  admissible,  unless  it  be  shown  that  the- 
boundary  of  the  two  private  estates  is  identical,  with  that  of  twO' 
hamlets  or  parishes,  in  which  latter  case  evidence  of  reputationi 
may  be  put  in,  the  same  as  though  the  boundary  of  the  parishes- 
or  hamlets  was  the  chief  matter  in  issue  [Thomas  v,  Jenkins.,  6' 
Adolph.  &  Ellis''  R.,  525 ;  Brisco  v.  Lomax,  8  ih.,  213).  Tha 
doctrine  was  thus  stated  by  Lord  Campbell :  "  The  law  of  Eng- 
land lays  down  the  rule  that,  on  the  trial  of  issues  of  fact  before 
a  j'.iry,  hearsay  evidence  is  to  be  excluded,  as  the  jury  might  often 
be  misled  by  it ;  but  it  makes  exceptions  where  a  rehixation  of 
39 


306  ^-^TT  OF  BOUyDARIES. 

the  rule  tends  to  the  due  investigation  of  truth  and  the  attainment 
of  justice.  One  of  tliese  exceptions  is  where  the  question  relates 
'-  matters  of  public  or  general  interest.  The  term  '  interest '  here 
u3es  not  mean  that  which  is  'interesting'  from  gratifying  curi- 
osity, m'  a  love  of  information  or  amusement,  but  that  in  which 
a  class  of  the  community  have  a  pecuniary  interest,  or  some 
interest  by  which  their  legal  rights  or  liabilities  are  affected.  The 
admissibility  of  the  declarations  of  deceased  persons  in  such  cases 
is  sanctioned,  because  these  rights  and  liabilities  are  generally  of 
ancient  and  obscure  origin,  and  may  be  acted  upon  only  at  dis- 
tant intervals  of  time ;  because  direct  proof  of  their  existence, 
therefore,  -ought  not  to  be  required  ;  because  in  local  matters,  in 
which  the  community  are  interested,  all  persons  living  in  the 
neighborhood  are  likely  to  be  conversant;  because  common  rights 
and  liabilities  being  naturally  talked  of  in  public,  what  is  dropped 
in  conversation  respecting  them  may  be  presumed  to  be  true ; 
because  conflicting  interests  would  lead  to  contradiction  from 
others  if  statements  were  false  ;  and  thus  a  trustworthy  'reputation 
may  arise  from  the  coneurrence  of  many  parties  unconnected  with 
each  other,  who  are  aJl  interested  in  investigating  the  subject. 
But  the  relaxation  h.as  not  been,  and  ought  not  to  be,  extended  to 
questions  relatjng  to  matters  of  mere  private  interest;  for  respect- 
ing these  direct  proof  may  be  given,  and  no  trustworthy  reputa- 
tion is  likely  to  arise.  We  must  remark,  however,  that  although 
a  private  interest  should  be  involved  with  a  matter  of  public 
interest,  the  reputation  respecting  rights  and  liabilities  affecting 
classes  of  the  community  cannot  be  excluded,  or  this  relaxation 
of  the  rule  against  the  admission  of  hearsay  evidence  would  often 
be  found  unavailing  "  {Regina  v.  The  Inhabitants  of  Bedford- 
shire, 4  Ellis  <&  Blackhurn^s  i?.,  535,  541).  But,  as  before  stated, 
by  the  American  practice,  the  declarations  of  deceased  persons,  in 
qualified  cases,  are  admitted  in  evidence,  in  questions  relating  to 
private  as  well  as  public  boundai-ies.  The  general  rule,  however, 
•would  seem  to  be,  both  in  this  oounTti-y  and  in  England,  that,  in 
order  to  render  such  declarations  admissible  as  evidence,  they 
must  have  been  made  anie  litern  motam,  or  before  the  suit  was 
commenced  in  which  they  are  offered.  And  it  is  generally  held, 
also,  that  such  declarations  will  be  rejected,  if  the  witnesses  are 
not   proved  to  be   dead   at   the   time  of  the   trial  (^Buchanan  v 


EVIDEXCE  IN  BOUXDARY  CASES.       '  307 

Moore,  10  Sergeant  i&  Raiole^s  E.,  281 ;   Recjina  v.  Milton.  1 
Carringion  &  Kirwan^s  R.,  58).^ 


CHAPTER  XXY. 

EVIDENCE   IN   BOUNDAKY   CASES JUDGMENTS   AND   OTIIEK   ADJUDICA- 
TIONS  POSSESSION  AND  ACTS  OF   OWNERSHIP. 

There  are  some  other  species  of  evidence  admissible  in  bound- 
ary cases,  which  may  be  properly  noticed.  Verdicts,  decrees, 
judgments,  and  other  adjudications  upon  matters  of  a  public 
nature,  are  admissible  in  evidence,  not  precisely  as  reputation,  but 
as  the  decisions  of  competent  tribunals  on  the  matters  involved. 
Of  course,  where  the  precise  boundary  has  been  litigated  and 
passed  upon  by  a  competent  judicial  tribunal,  the  question  will  be 
regarded  as  res  adjudioata  between  the  same  parties  and  their 
privies.  But  in  cases  of  boundary  the  rule  extends  to  the  admis- 
sion of  such  adjudications  when  not  between  the  same  parties,  or 
directly  upon  the  boundary  involved.  Thus,  in  the  English 
Court  of  King's  Bench,  where  the  question  related  to  the  bound- 
ary between  the  manors  W.  and  0.,  and  the  plaintiff's  case  was 
that  the  boundary  line  between  these  two  manors  was  the  ridge 
of  a  mountain,  from  which  the  waters  descended  in  opposite  direc- 
tions, it  was  held  that  he  might  show,  in  support  of  this,  that  the 
boundary  between  the  adjoining  manor  I.  and  the  said  manor  O. 

*  Professor  Greenleaf,  in  his  excellent  treatise  on  the  Law  of  Evidence,  lays  it 
down  as  settled,  that  evidence  of  reputation  is  received,  in  regard  to  the 
boundaries  of  parishes,  manors  and  the  like,  which  are  of  public  interest,  and 
generallj'  of  remote  antiquity  -,  but  he  expresses  the  opinion  that,  by  the  weight 
of  authority  and  upon  better  reason,  such  evidence  is  inadmissible  for  the  pur- 
pose of  proving  the  boundary  of  a  private  estate,  when  such  boundary  is  not 
identical  with  another  of  a  public  or  quasi  public  nature  (1  Q-reenl.  Ev.,  §  145). 
This  is  in  accordance  with  the  doctrine  in  England;  but  in  the  United  States, 
traditionary  evidence,  in  cases  of  boundary,  is  more  frequently  admitted  than  in 
England.  And  since  the  first  edition  of  Mr.  Greenleaf 's  work,  in  1843^  a  con- 
siderable number  of  cases  have  been  reported,  in  which  it  has  been  held  that 
such  evidence  is  receivable  to  prove  the  boundaries  of  land  between  individual 
proprietors  ;  so  that  it  may  be  considered  at  present,  perhaps,  the  better  opinion, 
that  traditionary  evidence  is  admissible  in  cases  of  boundary  of  a  private  as 
well  as  a  public  nature. 


808  LAW  OF  BOUNDARIES. 

was  the  ridge  of  the  same  line  of  mountain  from  which  the  waters 
descended  in  opposite  directions ;  and  that  he  miglit  prove  this 
fact,  by  the  finding  of  a  jmy  summoned  from  the  duchy  of 
Lancaster  for  the  purpose  of  determining  the  boundary  between 
the  manors  I.  and  O.,  on  the  petition  of  former  owners  of  I.  and 
O.,  who  had  represented  that  that  boundary  was  uncertain,  and 
that  suits  were  likely  to  grow  between  them.  The  character  of 
this  kind  of  evidence  is  thus  described  in  the  opinions.  Littledale, 
J.,  said :  "  On  a  question  of  boundary,  mere  reputation  is  evi- 
dence. But  I  put  this  as  a  verdict,  not  as  reputation.  It  is  a 
trial  by  witnesses  competent  to  speak  to  the  fact.  Now,  reputa- 
tion being  evidence,  the  verdict  must  be  evidence,  as  was  said  in 
Heed  X.  Jackson  (1  East.,  355) ;  and  this,  though  the  former  pro- 
ceeding was  between  difierent  parties.  It  is  not  reputation  ;  but 
it  is  as  good  evidence  as  reputation."  And  Patterson,  J.,  said : 
"  It  is  certainly  difficult  to  say  that  a  verdict  can  be  I'eceived 
merely  as  evidence  of  reputation  ;  for  a  jury  are  summoned  from 
the  body  of  the  county  at  large,  and  are  not  themselves  likely  to 
know  the  matter.  But  that  argument,  if  it  were  to  prevail,  would 
exclude  all  evidence  of  verdicts,  for  a  jury  do  not  find  upon 
knowledge  of  their  own  ;  so  that  the  verdict  never  could  be  rejni- 
tation,  nor  quite  analogous  to  it.  Yet,  whei-e  a  matter  has  been 
before  a  jury,  the  verdict  is  generally  given  in  evidence  as  a  sort 
of  reputation,  if  I  may  so  term  it  "  {Brisco  v.  Zo)nax,  8  Adoljjh. 
i&  Ellis'  R.,  210).  The  case  of  Reed  v.  Jacksoii,  i-eferred  to  by 
Littledale,  J.,  was  not  one  involving  a  question  of  boundary,  but 
of  a  public  right  of  way  ;  and  Lord  Kenyon  expressed  the  opinion 
that  reputation  M'as  evidence  with  respect  to  public  rights  claimed, 
as  in  that  case,  but  not  with  respect  to  private  rights.  He  asserted, 
however,  that  the  record  offered  in  the  case  was  admissible  evi- 
dence, though  between  other  parties,  as  to  the  finding  upon  the 
right  to  the  public  footway,  which  was  negatived.  The  defend- 
ants in  both  cases  stood  in  the  same  relative  situation. 

But  the  same  court  declared  that  the  principles  laid  down  in 
these  cases,  with  respect  to  the  admissibility  of  verdicts,  have  no 
application  to  awards.  The  court  observed :  "  An  award  is  but 
the  opinion  of  the  arbitrator,  formed,  not  upon  his  own  know- 
ledge, as  declai-ations  used  by  way  of  reputation  commonly  are, 
but  upon  the  result  of  evidence  laid  before  him,  most  probably  in 
private,  and  formed  also  j)ost  litem  motam,  having  none  of  the 


EVIDENCE  IN  BOUNDARY  CASES.  309 

qualities  upon  wliicli  evidence  of  reputation  rests.  It  may  be 
said  that  the  verdict  of  a  jury  is  equallj^  defective  in  such  quali- 
ties. Whether  it  be  so  or  not,  it  is  sufficient  to  say  that  the 
admissibility  of  a  verdict  as  evidence  of  reputation  is  established 
by  too  many  authorities  to  be  now  questioned  ;  but  that  the  prin- 
ciple of  tliose  authorities  is  not  clear  enough  to  embrace  an  award  " 
{Evans  v.  Jiees,  10  Adolph.  &  Ellis  R.,  151). 

In  a  case  before  the  Irish  courts,  ancient  patents  and  inquisitions 
were  admitted  as  evidences  of  reputation  to  show  the  extent  of  a 
navigable  river  {The  Marquis  of  Donegal  v.  Lord  Temj>lemore^ 
9  Irish  Com.  Law  R.^  371:;  In  re  Belfast  Dock  Act,  1  Irish  R., 
128). 

In  a  case  in  the  English  Court  of  King's  Bench,  ancient  leases 
were  held  to  have  been  properly  received  as  evidence  of  reputa- 
tion in  a  question  of  pjarisli  boundary,  and  old  books  of  account, 
containing  evidence  of  payment  of  parish  rates,  were  admitted 
{Plaxton  V.  Dare,  10  Barn.  &  Ores.  R.,  17;  S.  C,  5  Man.  cfe 
Ryl.  R.,  1).  And  in  another  late  case,  under  a  rate  for  the  relief 
of  the  poor  of  the  parish  of  T.,  made  in  1858,  the  appellant  was 
assessed  as  occupier  of  an  estate  in  tliat  parish  called  N.  From 
the  year  1698  down  to  the  time  the  rate  was  made,  N.  had  main- 
tained its  own  poor,  and  had  never  been  chai-ged  with  the  support 
of  the  poor  of  any  other  place.  In  1858  the  owner  of  a  large 
estate  in  the  parish  of  T.  found  among  the  title-deeds  of  that 
estate  in  his  possession  an  agreement,  dated  1698,  purporting  to 
be  made  between  the  then  owner  of  N.,  on  the  one  part,  and 
several  inhabitants  of  T.,  on  behalf  of  the  parish,  on  the  other. 
This  agreement  recited  that  N.  was  a  part  of  T. ;  and  that  it 
liad  been  agi'eed  that  N.  should  maintain  its  own  poor,  and  not  be 
chargeable  toward  the  poor-rate  of  the  other  part  of  the  parish. 
It  was  held  that  this  agreement  was  admissible  in  evidence  as  an 
ancient  document  relating  to  the  interest  of  all  the  estates  in  T., 
and  Mdiich  might,  therefore,  naturally  and  reasonably  be  expected 
to  be  found  among  the  title-dee'ds  of  a  large  estate  in  T.,  and  so 
came  from  the  proper  custody ;  that  it  was  decisive  evidence  to 
show  that  N,  was  a  part  of  the  parish  of  T. ;  and  that  it  was  also 
evidence  of  reputation  as  to  the  extent  of  the  parish,  being  a 
declaration  by  the  deceased  owner  of  N.  and  the  other  inhabitants 
of  T.  to  that  effect  {Regina,  respondent,  v.  Mytton,  appellant,  2 
Ellis  (J&  Ellis'  R.,  557).     In  another  case,  ancient  orders  of  ses- 


310  LAW  OF  BOUNDARIES. 

sionSj  conta.-ning  statements  respecting  boundaries,  were  admitted 
as  evidence  of  reputation  [Duke  of  Newcastle  v.  Broxtowe,  4 
Barn.  &  Adolj)h.  B.,  273;  S.  C,  1  Nev.  c&  Man.  B.,  507). 
But  in  one  case  in  the  English  King's  Bench,  entries  in  parish 
books,  whicli  recorded  that  the  perambulations  had  taken  a  parti- 
cular line,  were  rejected  because  it  was  evidence  of  a  particular 
fact,  and  not  of  general  reputation  {Taylor  v.  Bevey,  7  Adolph.  db 
Bins'  B.,  409).  In  another  case,  upon  a  question  concerning  a 
parish  boundary,  a  book  kept  in  the  Chapter-house  of  Salisbury, 
purporting  to  contain  copies  of  leases  granted  by  the  dean  and 
chapter,  and  their  conlirraation  of  leases  granted  by  the  bishop  or 
the  prebendaries,  was  put  in  evidence.  The  book  was  open  to 
the  tenants  of  the  manors  belonging  to  the  dean  and  chapter,  and 
many  of  the  leases  stated  the  district  to  be  in  the  parish.  Tindal, 
Ch.  J.,  thought  the  book  to  be  in  the  nature  of  a  public  document, 
and  therefore  admissible  as  evidence  of  reputation  respecting  the 
parish  boundary  {Coomls  v.  Coether,  1  Moody  cfi  Malkhi's  B.,  398). 

On  an  inquiry  as  to  the  true  boundary  between  two  parishes 
and  counties,  certain  presentments  of  a  manor  court  were  offered 
in  evidence,  in  one  of  which  the  boundary  was  set  out.  The  pre- 
sentment in  question  was  in  a  mutilated  state ;  but  as  the  part 
torn  off  appeared  not  to  have  contained  any  matter  connected  with 
the  subject  of  boundary,  the  Court  of  King's  Bench  of  England 
held  it  to  be  admissible  {JEvans  v.  Bees,  10  Adolph.  &  Ellis'  B., 
151). 

Mr.  Taylor,  in  his  treatise  on  the  Law  of  Evidence,  as  adminis- 
tered in  England  and  Ireland,  expresses  a  doubt  as  to  how  far 
maps,  showing  the  boundaries  of  counties,  towns,  parishes  or 
manors,  are  admissible  in  evidence  (1  Taylor  on  Ev.,  558,  bth 
edition).  But  the  rule,  doubtless,  is  that  such  maps  are  admissible 
as  evidence  of  reputation,  provided  they  are  found  in  proper  cus- 
tody, that  is,  "  in  a  place  in  which  and  under  the  care  of  persons 
with  whom  such  documents  must  naturally  and  reasonably  be 
expected  to  be  found  "  {Bishop  of  Meath  v.  Marquis  of  Winchester, 
3  Bingham's  New  Cases,  200-202 ;  S.  C,  10  Bligh's  B.,  462- 
464).  Mr.  Greenleaf  says  that  maps  showing  the  boundaries  of 
towns  and  parishes  are  admissible  if  it  appear  that  they  have  been 
made  by  persons  having  adequate  knowledge ;  and,  further,  that 
Verdicts  are  also  receivable  as  evidence  of  reputation  in  questions 
of  public  or  general  interest  (1  Greenl.  Ev.,  %  139). 


EVIDENCE  IN  BOUNDARY  CASES.  311 

In  a  case  in  the  English  Court  of  Exclieqnei-,  a  map  was  pro- 
duced in  order  to  show  tliat  a  certain  place  was  not  in  the  county 
of  Suffolk.  On  the  face  of  the  map  were  printed  the  following 
words:  "Anew  map  of  the  county  of  Suffolk,  taken  from  an 
original  map  published  by  Mr.  I.  K.,  in  1736,  who  took  an  actual 
and  accunite  survey  of  the  whole  county,  now  republished  (176G), 
with  additions  and  corrections  by  I.  and  W.  K.,  etc."  The  map, 
which  appeared  to  be  ancient,  did  not  comprise  the  place  in  ques- 
tion. It  was  produced  by  a  witness  who  had  purchased  it  twelve 
or  fourteen  years  before,  in  whose  custody  it  had  been  ever  since. 
Coleridge,  J.,  in  delivering  the  judgment  of  the  conrt,  said  : 
"One  question  argued  before  ns  was  whether  this  map  came 
from  the  proper  custody.  In  one  sense  it  did ;  for  it  was  pro- 
duced by  a  gentleman  who  bought  it  twelve  years  ago.  But  the 
fact  .of  its  being  in  the  custody  of  the  party  who  had  such  lawful 
possession  of  it  does  not  at  all  vouch  for  its  authenticity,  nor  that 
it  is  what  it  professes  to  be.  It  is  wholly  unlike  the  case  of  a 
deed  purporting  to  be  a  conveyance  of  land.  If  such  a  deed  is 
found  in  tlie  custody  of  the  party  who,  if  it  were  such  convey- 
ance, would  have  a  right  to  it,  and  kept  amongst  his  title-deeds, 
such  custody  tends  to  show  that  it  is  what  it  professes  to  be.  But 
that  argument  does  not  apply  here.  The  custody  does  not  tend 
to  show  that  the  map  was  what  it  professes  to  be.  *  *  '^  The 
pei'sons  who  made  the  map  do  not  appear  to  have  been  deputed 
to  make  it  by  any  persons  interested  in  the  question,  nor  to  have 
been  iu  any  way  connected  with  the  district,  so  as  to  make  it  pro- 
bable that  they  had  such  knowledge.  The  grounds  on  which  an 
ancient  pedigree  is  received  in  evidence  are,  consequently,  want- 
ing in  this  case.  ^  *  *  We  thiidc,  therefore,  that  this  map 
was  inadmissible"  {Ilammond  v.  Bradstreet,  10  Exch.  E.,  390; 
vide,  also,  Pipe  v.  Fulcher,  1  Ellis  c&  Ellis'  E.,  Ill  ;  Pollard 
v.  Scott,  Peake,  N.  P.,  19).  But  where  a  map  of  a  parish  was 
offered  in  evidence,  and  it  was  proved  by  the  surveyor  who  made 
it  that  thirty-four  years  before  the  trial  he  laid  down  the  bound- 
ai'ies  of  the  parish  from  the  information  of  an  old  man,  who  went 
round  and  showed  them  to  him,  it  was  held  that  the  map  might 
have  been  received  as  evidence  of  reputation,  though  it  was 
rejected  in  consequence  of  the  old  man's  death  not  being  proved 
{Eegina  v.  MUton,  1  Car.  &  Kirwaii's  E.,  58). 

Private  nnips  and  surveys,  according  to  the  English  rule,  are 


312  LAW   OF  BOUXDARIES. 

not  generally  receivable  in  evidence,  either  for  or  against  the  par- 
ties making  them  (  Vide  PMllqjs  v.  Hudson^  2  Law  R.,  Ch.  App., 
243 ;  Wilkinson  v.  AlhoU,  3  Brown's  P.  C,  684 ;  S.  6'.,  4 
Gwillhri^s  P.,  1585  ;  Wakeman  v.  West,  7  Car.  tfe  Payne's  P., 
479).  But  such  documents  may,  under  certain  circumstances,  be 
treated  as  admissions  by  persons  in  possession  of  estates  as  to  the 
extent  of  their  rights,  and  are  then  receivable  in  evidence  in  the 
same  manner  as  other  declarations  against  proprietary  interest. 
And  in  all  cases  where  a  party  conveys  real  estate,  describing  it 
by  a  map,  the  map  is  regarded  as  a  part  of  the  deed,  and,  of 
course,  is  evidence  against  the  gi'antor.  In  an  early  English  case, 
A.  was  seised  of  the  manors  of  B.  and  C, ;  and  during  his  seisin 
lie  caused  a  survey  to  be  made  of  the  manor  of  B.,  which  was 
afterward  conveyed  to  E.  In  a  dispute  between  the  lords  of  the 
manors  of  B.  and  C.  about  their  boundaries,  it  was  held  that  this 
survey  might  be  given  in  evidence  {Bridgman  v.  Jennings,  1  Ld. 
PayniornVs  P.,  734),  And  in  a  later  case  Patterson,  J.,  said  that 
the  only  case  in  which  a  map  is  receivable  in  evidence  is  where  it 
is  undisputed  that,  at  the  time  the  map  was  made,  the  whole  pro- 
perty belonged  to  the  person  from  whom  both  parties  claim  {Doe 
d.  Hughes  v.  LaVin,  1  Car.  &  Payne's  P.,  481).  Indeed,  a 
map  annexed  to  a  deed  seems  to  stand  on  the  same  footing  as  the 
description  contained  in  the  deed  itself.  It  was  laid  down,  as  a 
rule,  in  a  case  in  Massachusetts,  hereinbefore  referred  to,  that, 
"  wliere  lines  are  laid  down  on  a  map  or  plan,  and  are  referred  to 
in  a  deed,  the  courses,  distances,  and  other  particulars  appearing 
on  such  plan  are  to  be  as  much  regarded  as  the  true  description  of 
the  land  conveyed,  as  they  would  be  if  expressly  recited  in  the 
deed  "  {Davis  v.  Painsford,  17  Mass.  P.,  207,  211).  And  to  the 
same  efiect  is  an  English  nisi prius  case,  wherein  it  was  held  that 
the  map  on  the  back  of  a  lease  was  a  ]>art  of  the  contract,  and 
might,  tlierefore,  be  given  in  evidence  to  show  what  Nvas  demised 
(  Wakeman  v.  West,  7  Car.  &  Payne'' s  P.,  480  ;  and  vide  Lyle  v, 
Pichards,  1  L.  P.,  E.  &  I.  App.,  222).  An  old  map  of  lands 
Avas  allowed  in  an  English  case,  where  it  came  along  with  the 
muniments  of  title,  and  agreed  with  boundaries,  as  adjusted  in  an 
ancient  purchase  {Yates  v.  Harris,  Gilbert  on  Ev.,  70).  Parol 
evidence  is  admissible  to  identify  a  plan,  where  reference  is  speci- 
fically made  to  it  in  a  written  agreement  {Hodges  v,  HorsfaU,  1 
Puss.  i&  My.  P.,  116;   Chinan  v.  Cooke,  1  Sch.  &  L^.  P.,  32j. 


E  VIDENCE  IN  B  0  UKDA  :i  Y  CA  SES.  3  1  3 

Ancient  surveys  and  extents,  which  are  produced  from  proper 
custody,  and  wliich  are  proved  to  have  been  made  under  proper 
authority,  are  hekl  to  be  receivable  in  evidence  as  public  docu- 
ments in  questions  of  boundary.  In  tlie  English  Court  of  Exche- 
quer, an  ancient  extent  of  crown  lands,  found  in  the  office  of  land 
revenue  records,  and  purporting  to  have  been  made  by  the  steward 
of  the  crown  lands,  was  held  to  be  evidence  of  the  title  of  the 
crown  to  the  property  which  was  mentioned  therein,  and  which 
was  stated  to  have  been  purchased  by  the  crown  of  a  subject  {Doe 
d.  William  IV  Y.  Roberts,  13  Mees.  c&  Welsh.  ^.,520;  and  vide 
Earl  of  Carnarvon  v.  Villehois,  Ih.,  313;  Fiirman  v.  Read,  4 
Best  i&  Smith''s  R.,  174).  But  in  a  case  in  the  Court  of  King's 
Bench,  there  was  offered  in  evidence  an  instrument  purporting  to 
be  a  survey  of  a  manor,  which  was  at  one  time  a  parcel  of  the 
duchy  of  Lancaster.  The  document  was  produced  from  the 
office  of  the  duchy,  and  was  taken  by  J.  W.,  the  deputy  of  the 
surveyor-general  of  the  duchy,  by  authority  of  letters  of  depu- 
tation to  J.  W.,  and  by  the  oaths  and  presentments  of  the  tenants 
of  the  manor,  whose  names  were  subscribed.  There  was  also  con- 
tained a  description  of  the  boundaries,  custom  and  other  particu- 
lars. No  authority  for  taking  the  survey  was  proved,  except  as 
appears  from  this  statement.  It  was  held  to  be  inadmissible  on  a 
question  relating  to  the  boundaries  of  the  manor,  inasmuch  as  it 
M-as  not  a  survey  authorized  by  the  statute  of  Extenta  Manerii  (4 
Edioard  I,  statute  1);  for  this  statute  gives  no  power  to  define 
the  boundaries  of  manors.  And  it  was,  moreover,  held  not  even 
to  be  evidence  of  reputation  ;  though  some  doubt  as  to  the  accu- 
racy of  the  judgment  on  this  last  point  is  expressed  in  another 
case  in  the  Exchequer  {Evans  v.  Taylor,  7  Adolph.  &  Ellis'  R., 
G17;  vide  Duke  of  Beaufort  v.  Smith,  4  Exch.  R.,  450). 

In  another  case  in  the  Court  of  Exchequer,  it  appeared  that,  in 
the  reign  of  Charles  I,  the  crown  granted  in  fee  form  "  a  messuage, 
and  escheat  lands  and  tenements,  containing  by  estimation  112 
acres,  situate  in  the  vill  of  K.,  now  or  late  in  the  occupation  or 
tenure  of  D."  In  replevin  of  a  distress  for  the  rent  reserved, 
A'?'^hich  had  been  made  in  certain  closes  of  a  farm  called  Plas  Bach, 
the  defendant,  for  the  purpose  of  proving  that  Plas  Bach  was  par- 
cel of  the  112  acres  out  of  which  the  rent  issued,  tendered  in  evi- 
dence a  presentment  of  a  grand  jury,  from  the  office  of  land 
revenue  records,  made  in  the  eleventh  year  of  the  reign  of  Quoen 
40 


314  LAW  OF  BOUNDARIES. 

Elizabeth,  in  which  lands  called  Y  Plas  Baghe  were  mentioned  as» 
being  in  the  township  or  vill  of  K,,  and  in  the  occupation  of  D. 
No  authority  for  the  snrvey  appeared,  nor  was  the  paper  signed 
by  the  jury.  It  was  held  that  although,  for  the  purpose  of  fur- 
nishing evidence  of  reputation  as  to  the  bouudaiy  of  the  vill,  the 
instrument  might  perhaps  have  been  admissible,  yet  that,  as  it 
appeared  to  be  no  more  than  a  survey  taken  by  a  private  indi- 
vidual for  his  own  purjjoses,  it  could  not  be  received  in  evidence 
as  a  public  document  {Daniel  v.   Wilkin,  7  Exoh.  R.,  429). 

Ancient  extents  and  surveys,  which  come  from  the  proper  cus- 
tody and  appear  upon  examination  to  have  been  regularly  and 
properly  taken,  may  sometimes  be  admitted  in  evidence,  although 
the  commissions  under  which  they  were  taken  are  lost  {Rowe  v. 
Brenton,  8  Barn.  <&  Cres.  E.,  747).  But  survey  books  of  a 
manor,  although  ancient,  cannot  be  received  in  evidence,  unless 
signed  by  the  tenants,  or  unless  they  appear  to  have  been  made  at 
a  court  of  survey  ;  they  are  also  only  private  memorials  (12  Viner's 
Ah'id.,  A.  h.  15,  §  12).  Under  an  issue  to  try  the  boundaries  of 
a  parish,  papers  handed  over  to  the  present  incumbent  by  the 
representatives  of  his  predecessor,  as  papers  belonging  to  the 
parish  found  in  the  late  incumbent's  possession,  were  admitted  in 
evidence,  without  calling  upon  the  representatives  themselves  to 
account  for  the  way  in  which  the  documents  came  into  their  hands ; 
and  in  the  same  case  a  terrier  of  the  parish,  not  signed  by  any 
person  bearing  any  public  character  or  office  in  the  parish,  was 
rejected  {Earl  v.  Lewis,  4  Espinasse's  li.,  1).  Where  a  boundary 
line  between  a  city  and  patent  lands  was  in  dispute,  the  Court  of 
Appeals  of  the  State  of  New  York  held  that  an  ancient  agree- 
ment as  to  the  boundary  between  the  trustees  of  the  city  and  cer- 
tain proprietors  of  lands  in  the  patent,  upon  due  proof  of  its  exe- 
cution and  the  appointment  of  the  trustees,  was  competent  evi- 
dence. It  was  also  held  that,  on  the  same  issue,  field  notes,  made 
pursuant  to  the  said  agreement,  and  procured  from  the  town 
records  of  the  said  city,  were  also  admissible,  and  that  the  settle- 
ment deed  between  the  said  trustees  and  proprietors  was  compe- 
tent. And  it  was  further  held  that  maps,  surveys,  deeds  and 
leases  found  in  records  of  the  city  and  executed  by  the  trustees 
were  admissible,  and  that  it  was  no  objection  that  the  cestuis  qui 
trust  had  not  individually  any  power  to  resist,  for  that  they  might 
have  elected  other  trustees  {Hunt  v.  Johmon,  19  N.  Y.  R.,  279). 


EVIDENCE  IN  BOUNDARY  CASES.  315 

In  the  State  of  New  Jersey  it  was  held  that,  where  the  question 
is  as  to  the  actual  location  of  a  way,  as  a  boundary,  the  proceedings 
of  tlie  surveyors  of  the  way  are  admissible  in  evidence,  without 
proving  the  appointment  of  the  surveyors  {Jlaring  v.  Yan 
Hauten,  2  N.  J.  R.,  61). 

The  possession  of  real  estate  is  prima  facie  evidence  of  the 
highest  estate  in  the  property,  namely,  a  seisin  in  fee  {Hill  x. 
Draper,  10  Barh.,  454).  Upon  this  principle,  a  statement  made 
by  a  person  in  possession  of  property  that  he  holds  only  for  life, 
or  for  any  other  estate  less  than  the  fee,  is  a  declaration  strongly 
against  his  interest.  Such  a  statement,  therefore,  is  receivable  in 
evidence  both  against  the  declarant  himself  and  those  claiming 
-  nder  him  ;  and,  after  his  death,  both  for  and  against  strangers, 
.n  order  to  show  what  estate  the  declarant  held  in  the  premises 
{Buller's  Nisi  Frius,  103). 

The  foregoing  points  have  been  settled  by  English  authorities, 
the  most  of  which  are  referred  to  by  Mr,  Hunt  in  his  little  work 
upon  boundaries,  as  applicable  to  questions  relating  to  the  boundary 
of  a  parish  or  manor,  and  the  like,  but  not  as  applicable  to  prove 
the  boundary  of  private  estates ;  as,  by  the  law  of  England,  such 
evidence  is  admissible  only  in  cases  where  the  boundary  is  one  of 
public  interest.  But,  inasmuch  as  the  opinion  is  entertained  that 
the  tendency  of  the  American  decisions  is  to  admit  such  evidence 
on  questions  of  private  as  well  as  public  boundaries,  the  cases  con- 
sidered are  pertinent,  and  may  be  cited  as  authority  upon  all  such 
questions  in  the  American  States. 

Evidence  of  acts  of  ownership,  exercised  by  a  party  on  the 
neighboring  property  of  the  adjoining  owner  on  the  opposite  side 
of  a  river,  has  been  allowed,  to  rebut  the  presumption  that  each 
party's  land  extended  to  the  medium  ad  Jilum  of  the  bed  of  the 
stream.  Th.e  case  in  which  the  evidence  was  allowed  may  be 
referred  to  at  length,  because  the  learned  baron  who  gave  the 
opinion  makes  many  valuable  observations  on  the  points  here  dis- 
cussed. The  dispute  between  the  parties  in  the  case  related  to 
the  ownership  of  a  portion  of  the  bed  of  a  stream,  flowing  between 
the  plaintiff's  farm  and  the  defendant's  farm,  its  source  being  at 
some  distance  from  both.  The  plaintiff  contended  tliat  the  whole 
of  the  bed  of  the  river  adjacent  to  his  land  belonged  to  him;  the 
defendant,  on  the  other  hand,  claimed  it  ad  medium  filum  aqucB. 
The  plaintiff's  farm  extended  a  greater  distance  down  the  stream 


SIG  LAW   OF  BOUXDARIES. 

tlian  the  land  of  the  defendant  on  tlie  other  side.  Evidence  was 
brought  forward  to  show  that  lower  down,  and  opposite  another 
farm  belonging  to  C,  the  plaintiff  was  the  undisputed  owner  of 
the  whole  bed  of  the  river.  This  evidence  consisted  of  acts  of 
ownership  exercised  by  the  plaintiff  upon  the  bed  of  the  river 
close  to  C.'s  farm,  and  of  repairs  done  by  him  to  a  fence  which 
divided  C.'s  farm  from  the  river,  and  which  was  a  continuation  of 
a  fence  on  the  defendant's  land.  A  new  trial  having  been  moved 
for,  on  the  ground  of  the  improper  rejection  of  this  evidence, 
Baron  Parke  delivered  the  following  judgment :  "  I  am  of  opinion 
that  this  case  ought  to  go  down  to  a  new  trial,  because  I  think  the 
evidence  offered  of  acts  in  another  part  of  one  continuous  hedge, 
and  in  the  whole  bed  of  the  river  adjoining  the  plaintiff's  land, 
was  admissible  in  evidence,  on  the  ground  that  they  are  such  acts 
as  might  reasonably  lead  to  the  inference  that  the  entire  hedge 
and  bed  of  the  river,  and  consequently  the  part  in  dispute, 
belonged  to  the  plaintiff.  Ownership  may  be  proved  by  proof  of 
possession,  and  that  can  be  shown  only  by  acts  of  enjoyment  of 
the  property  itself;  but  it  is  impossible,  in  the  nature  of  things,  to 
confine  the  evidence  to  the  precise  spot  on  which  the  alleged  trespass 
may  have  been  committed.  Evidence  may  be  given  of  acts  done 
on  other  parts,  provided  there  is  such  a  common  character  of 
locality  between  these  parts  and  the  spot  in  question  as  w'ould 
raise  a  reasonable  inference  in  the  minds  of  the  jury  that  the 
place  in  dispute  belonged  to  the  plaintiff  if  the  other  parts  did. 
In  ordinary  cases,  to  prove  his  title  to  a  close,  the  claimant  may 
give  in  evidence  acts  of  ownership  in  any  part  of  the  same 
inclosure  ;  for  the  ownership  of  one  part  causes  a  reasonable  infer- 
ence that  the  other  belongs  to  the  same  j^erson,  though  it  by  no 
means  follows  as  a  necessary  consequence,  for  different  persons 
may  have  balks  of  land  in  the  same  inclosure ;  but  this  is  a  fact 
to  be  submitted  to  the  jury,  and  I  apprehend  the  same  rule  is 
applicable  to  a  wood  which  is  not  inclosed  by  any  fence ;  if  you 
prove  the  cutting  of  timber  in  one  part,  I  take  that  to  be  evidence 
to  go  to  a  jury  to  prove  a  right  in  the  whole  wood,  although  ther 
be  no  fence  or  distinct  boundary  surrounding  the  whole  ;  and  the 
case  of  Stanley  v.  White  (l-i  East,  332),  I  conceive,  is  to  be 
explained  on  this  principle.  In  that  case  there  was  a  continuous 
belt  of  trees,  and  acts  of  ownership  on  one  part  were  held  to  1)0 
admissible  to  prove  that  the  phiintiff  was  the  owner  of  another 


EVIDENCE  IN  BOUNDARY  CASES.  317 

part,  on  which  the  trespass  was  committed.  So  I  should  apply 
the  same  reasoning  to  a  continuous  hedge  ;  though  no  doubt  the 
defendant  might  rebut  the  inference  that  the  whole  belonged  to 
the  same  person  by  showing  acts  of  ownership  on  his  part  along 
the  same  fence.  It  has  been  said,  in  the  course  of  the  argument, 
that  the  defendant  had  no  interest  to  dispute  acts  of  ownership 
not  opposite  his  own  land  ;  but  the  ground  on  which  such  acts  are 
admissible  is  not  the  acquiescence  of  any  party ;  they  are  admis- 
sil)le  of  themselves,  ^j>/'(?/>?'/(>  vigore,  for  they  tend  to  prove  that  he 
who  does  them  is  the  owner  of  the  soil  ;  though,  if  they  are  done 
in  the  absence  of  all  persons  interested  to  dispute  them,  they  are 
of  less  weight.  That  observation  applies  only  to  tlie  effect  of  the 
evidence.  Applying  that  reasoning  to  the  present  case,  surely  the 
plaintiff,  who  claims  the  whole  bed  of  the  river,  is  entitled  to 
show  the  taking  of  stones,  not  only  on  the  spot  in  question,  but 
all  along  the  bed  of  the  river  which  he  claims  as  being  his  pro- 
perty;  and  he  has  a  right  to  have  that  submitted  to  the  jury. 
What  weight  tlie  jury  might  attach  to  it  is  another  question.  The 
principle  is  the  same  as  that  which  is  laid  down  in  Doe  v.  Kemp  " 
{Jones  V.  Williams,  2  Meeson  &  Welshy's  E.,  326  ;  and  vide  The 
Marquis  of  Donegal  y.  Lord  Templemore,  9  Irish  Com.  Law  R., 
374  ;  Diike  of  Devonshire  v.  Ilodnett,  1  Hudson  (&  BrooTce''s  Id., 
322  ;  In  re  Belfast  Dock,  1  Irish  Eq.  R.,  142).  In  the  case  of 
Doe  V.  Kemp  referred  to  by  the  learned  baron,  it  was  held  that 
acts  of  ownership,  exercised  not  only  over  the  spot  in  dispute,  but 
over  other  parts  of  the  waste  lands  of  a  manor,  are  receivable  in 
evidence  in  support  of  the  lord's  rights,  if  the  parts  in  dispute 
and  tlie  parts  over  which  the  acts  of  ownership  have  been  exer- 
cised are  so  situated  that  they  may  fairly  be  considered  as  parts  of 
one  waste  or  common  {Doe  d.  Barrett  v.  Kemj),  2  Brookei's  New 
Cases,  108 ;  hut  vide  Simpson  v.  Dundy,  8  Com.  Bench  R.,  N. 
S.,  433).  It  has  been  held  that  entries  of  presentments  in  the 
books  of  a  manor  are  not  evidence  of  ownership  by  the  lord 
[Irwin  V.  Simpson,  7  Broimi's  P.  C,  317). 

The  foregoing  rules  of  evidence  would  seem  to  be  all  that  are 
distinctively  applicable  to  cases  where  boundaries  are  the  subject 
of  litigation,  and  a  more  lengthened  statement,  therefore,  need  not 
be  given,  although  some  illustrations  may  be  found  in  a  subse- 
quent chapter. 


318  LAW  OF  BOUXDARIES. 


CHAPTER  XXYL 

EULES    RELATING  TO    TKEES  AND  HEDGES  OX   THE  BOUNDAEIES  OF  PEO- 

PERTT THE  OWXEESHIP  OF  TREES  WHOSE  ROOTS  EXTEND  INTO,  OR 

AVHOSE    BRANCHES    OVERHANG,  THE    LAND    OF   THE    ADJACENT    PRO- 
PRIETOR  THE     PROPERTY    IN  THE    FRUIT    OF    SUCH    OVERHANGING 

BRANCHES REMEDIES  IN  SUCH  CASES. 

It  may  not  be  regarded  as  entirely  inappropriate,  in  a  work  like 
the  present,  to  notice  the  principles  which  are  understood  to  appl} 
to  the  owners  of  trees  and  hedges  growing  upon  boundaiy  lines, 
or  so  near  that  their  roots  extend  into  the  land  of  the  adjoining 
proprietors.  Wliether  one  proprietor  of  land  can  compel  another, 
in  the  absence  of  special  agreement,  to  submit  to  have  his  land 
burdened  with  the  roots  of  a  tree  planted  on  the  neighboring  soil, 
does  not  seem  to  have  been  passed  upon  by  the  courts  of  England 
as  often  or  as  directly  as  by  the  courts  of  the  United  States.  The 
necessity  which  exists  for  an  easement  being  enjoyed,  openly  and 
as  of  right,  before  it  can  be  acquired,  may  sufficiently  account  for 
the  dearth  of  authority  upon  the  question.  It  seems  that  the 
authorities  of  England,  such  as  there  are,  are  somewhat  conflicting, 
or,  at  least,  not  entirely  harmonious  upon  the  subject.  A  suffi- 
cient number  of  the  cases  which  have  been  reported  in  both  coun- 
tries will,  therefore,  be  considered,  in  order  to  arrive  at  correct 
conclusions  in  respect  to  the  principles  on  which  the  subject  is 
governed. 

In  an  early  case,  decided  by  the  Court  of  King's  Bench  of  Eng- 
land, it  was  ruled  by  Lord  Holt,  chief  justice,  that  if  A.  plants  a 
tree  upon  the  extremest  Ihnits  of  his  land,  and  the  tree  growing 
extends  its  roots  into  the  land  of  B.  next  adjoining,  A.  and  B.  are 
tenants  in  common  of  this  tree ;  but  if  all  the  roots  grow  into  the 
land  of  A.,  though  the  boughs  overshadow  the  land  of  B.,  yet  the 
branches  follow  the  roots,  and  the  property  of  the  whole  ^s  in  A. 
{Wattrrnan  v.  Soper,  1  Zd.  Baym.  i?.,  377).  And  in  an  ojJ  case, 
reported  by  Rolle,  it  was  held  that  if  a  tree  grows  in  a  hedge 
which  divides  the  land  of  A.  and  B.,  and  by  the  roots  takes  nourish- 
ment in  the  land  of  A.  and  also  of  B.,  they  are  tenants  in  com- 
mon of  the  tree  {Anonymous,  2  Rolle s  7?.,  255).  Another  case 
ti  England  was  tried  at  nisi  prius,  in  M'hich  it  appeared  that  the 
Dody  of  the  tree  was  in  the  defendant's  land,  but  some  of  the  spur 


BOUXDARY  TREES  AND   HEDGES.  '  319 

roots  grew  into  tlie  land  of  tlie  plaintiff.  An  action  of  trespass  hav- 
ing been  bronght  for  cutting  down  the  tree,  Littledalo,  J.,  seems 
rather  to  have  sanctioned  the  doctrine  laid  down  in  Masters  v.  Pollie 
(2  RoUe.  IL,  141),  and  said  that  he  did  not  see  on  what  grounds  the 
jury  could  find  for  either  party,  in  respect  to  the  question  which  had 
been  raised  as  to  the  proportion  of  nourishment  derived  by  the 
tree  from  the  soil  of  the  plaintiiF  and  defendant ;  but  that  the 
safest  criterion  for  them  w^ould  be  to  consider  whether,  from  the 
evidence  given  as  to  the  situation  of  the  trunk  of  the  tree  above 
the  soil,  and  of  the  roots  beneath  it,  they  could  ascertain  where 
the  tree  was  first  sown  or  planted,  and  fiiid  for  the  plaintiff"  or 
defendant  accordingly  {Holder  v.  Coates,  1  Moody  <&  Malk.  R., 
112 ;  8.  a,  22  Eng.  C.  L.  E.,  2G5).  These  seem  to  be  the  only 
English  cases  directly  upon  the  point;  and,  by  the  nisi  pxins  case, 
tlie  judge  does  not  appear  to  have  decided  anything,  except  that 
the  jury  M'ere  to  determine  the  ownership  of  the  tree  by  find- 
ing out  in  Mdiose  land  the  body  of  the  tree  was  situated.  This 
view  is  in  accordance  with  the  doctrine  of  Masters  v.  Pollie. 

The  rule  of  the  civil  law  on  the  subject  of  boundary  trees  is 
contained  in  the  following  passages:  "If  a  tree  strikes  its  roots 
into  the  neighboring  soil,  nevertheless  it  remains  his  in  whose 
land  it  had  its  origin"  {Digest,  Lib.  47,  7,  6,  §  2).  "If  a  tree, 
planted  near  a  boundary  line,  extends  its  roots  into  the  lands  of  a 
neighbor,  it  becomes  common"  {Institutes,  Book  2,  tit.  1,  §  31  ; 
Digest,  Lib.  41, 1,  7,  §  13).  It  appears  from  Pothier  that  tlie  last, 
cited  passage  is  to  be  confined  to  the  case  of  a  tree  planted  on  the 
very  edge  or  boundary  line  of  the  property  {cited  in  Gale  on  Ease- 
ments, 4:th  edition,  470).  The  rule,  therefore,  of  the  civil  law  as 
to  the  ownership  of  boundary  trees  is  in  harmony  wnth  that  which 
seems  to  prevail  in  England  upon  the  same  subject. 

The  French  Code  contains  several  provisions  on  the  subject  of 
trees  and  hedges.  By  article  671  it  is  not  allowable  to  plant  trees 
of  lofty  trunk,  except  at  such  distance  from  the  boundai-y  as  is 
prescribed  by  particular  regulations  actually  existing,  or  by  con- 
stant and  acknowledged  usages;  and,  in  default  of  regulations  and 
usages,  only  at  the  distance  of  tw^o  metres  from  the  line  which 
separates  the  two  estates,  in  the  case  of  trees  of  lofty  trunk,  and 
at  the  distance  of  half  a  metre  in  the  case  of  other  trees  and  quick 
hedges.  A  neighbor  may  require  trees  and  hedges  planted  at  a 
less  distance  to  be  pulled  up  {article  672).     And  trees  which  are 


820  LAW   OF  BOUNDARIES. 

found  in  a  common  Ledge  are  common  like  the  hedge ;  each  of 
the  two  proprietors  has  a  right  to  require  that  they  should  he. 
felled,  and  also  of  cutting  the  roots  of  trees  growing  into  his 
land  {article  673).  These  provisions  are  certainly  quiie  reason- 
able. 

The  rule  in  the  American  States  upon  the  subject  does  not 
seem  to  vary  much  from  that  which  is  understood  to  prevail  under 
the  English  law ;  that  is  to  say,  not  from  the  rule  adopted  by  Lit- 
tledale,  J.,  in  the  principal  case  of  Ilolden  v.  Coates. 

In  an  early  case  before  the  Supreme  Court  of  Errors  of  the 
State  of  Connecticut  it  was  held  that  a  tree,  whose  trunk  stands 
on  the  land  of  A.,  extending  some  of  its  branches  over,  and  some 
of  its  roots  into  the  land  of  B.,  is,  with  such  overhanging  branches, 
and  the  fruit  thereon,  the  sole  property  of  A. ;  and  that  if  B. 
gather  the  fruit  from  such  branches,  and  appropriate  it  to  his  own 
use,  he  is  liable  in  trespass  to  A.  Bissell,  J.,  gave  the  opinion  of 
the  court  in  the  case,  and  made  the  following  observations:  "The 
case  of  Waterman  v.  Soper  supposes  the  tree  to  be  j^^c^nted  on  the 
'extremest  limit;'  that  is,  on  the  utmost  point  or  verge  of  A.'s 
land.  Is  it  not,  then,  fairly  inferable  from  the  statement  of  the 
case  that  the  tree,  where  gro\vn,  stood  in  the  dividing  line?  And 
in  the  case  cited  from  Rolle  the  tree  stood  in  the  hedge  dividing 
the  land  of  the  plaintiff'  from  that  of  the  defendant.  Is  it  the  doc- 
trine of  these  cases  that  whenever  a  tree,  growing  upon  the  land 
of  one  man,  whatever  may  be  its  distance  from  the  line,  extends 
any  portion  of  its  roots  into  the  lands  of  another,  they,  therefore, 
become  tenants  in  common  of  the  tree  ?  We  think  not ;  and  if  it 
were,  we  cannot  assent  to  it.  Because,  in  tlie  first  place,  there 
would  be  insurmountable  difficulties  in  reducing  the  principle  to 
practice ;  and,  in  the  next  place,  we  think  the  weight  of  authori- 
ties is  clearly  the  other  way. 

"  How,  it  may  be  asked,  is  the  principle  to  be  reduced  to  piac- 
tice?  And  here  it  should  be  remembered  that  nothing  depends 
on  the  question  whether  the  branches  do  or  do  not  overhano- 
the  lands  of  the  adjoining  proprietor.  All  is  made  to  depend 
solely  on  the  inquiry  whether  any  portion  of  the  roots  extend  into 
his  land.  It  is  this  fact  alone  which  creates  the  tenancy  in  com- 
mon ;  and  how  is  the  fact  to  be  ascertained? 

"Again;  if  such  tenancy  in  common  exists  it  is  diffused  over 
the  whole  tree.     Each  owns  a  certain  portion  of  the  whole.     In 


BOUXDARY  TREES  AND   HEDGES.  321 

what  proportion  do  the  respective  parties  hold?  And  how  are 
these  proportions  to  be  determined?  How  is  it  to  be  ascertained: 
what  part  of  its  noui'ishnient  the  tree  derives  from  the  soil  of  the 
adj(jining  jn-oprietoi'?  If  one  joint  owner  appropriates  all  the 
products,  on  what  principle  is  the  account  to  be  settled  between 
the  parties? 

"  Again  ;  suppose  the  line  between  adjoining  proprietors  to  run 
through  a  forest  or  grove.  Is  a  new  rule  of  property  to  be  intro- 
duced in  regard  to  those  trees  growing  so  near  the  line  as  to 
extend  some  portions  of  their  roots  across  it?  IIow  is  a  man  to 
know  whether  he  is  the  exclusive  owner  of  trees  growing  indeed 
on  his  own  land  but  near  the  line;  and  whether  he  can  safely  cut 
them  without  subjecting  himself  to  an  action? 

"And  again,  on  the  principle  claimed,  a  man  maybe  the  exclu- 
sive owner  of  a  tree  one  year,  and  the  next  a  tenant  in  common 
with  another;  and  the  proportion  in  which  he  owns  may  be  vary- 
ing from  3'ear  to  year,  as  the  tree  progresses  in  its  growth, 

"It  is  not  seen  how  tiiese  consequences  are  to  be  obviated,  if 
the  principle  contended  for  be  once  admitted.  We  think  they  are 
such  as  to  furnish  the  most  conclnsive  objections  to  the  adoption 
of  it"  {Lyman  v.  Hale,  11  Conn.  R.,  177,  182). 

To  the  same  effect  is  a  late  decision  of  the  Supreme  Court  of  the 
State  of  Vermont,  in  a  case  wherein  it  was  held  that  a  tree,  which 
has  its  main  body  or  trunk  in  A.'s  land,  and  extends  part  of  its 
branches  and  roots  into  the  land  of  B.,  is  the  soleproperty  of  A., 
and  that  B.  would  be  liable  in  trespass  on  the  freehold  for  picking, 
carrying  away  and  converting  to  his  own  use  the  fruit  growing  on 
the  branches  overhanging  his  own  land:  {Skinner  v.  Wilder,  38 
Yt.  R.,  115).  And  precisely  the  same  doctrine  is  held  by  the 
courts  of  the  State  of  New  York.  The  subject  was  very  thor- 
oughly examined  and  elaborately  discussed  by  the  Court  oil 
Appeals  of  the  State,  a  few  yeai-s  since,  and  a  conclusion  was- 
reached  in  accordance  with  this  rule.  Allen,  J.,  delivered  the- 
opinion  of  the  court,  and  said :  "  Different  opinions  have  beent 
held  as  to  the  rights  of  the  owners  of  adjoining  estates  in  trees- 
planted,  and  the  bodies  of  which  are  wholly  upon  one,  while  the' 
roots  extend  and  grow  into  the  other  ;  some  holding  that,  in  such^ 
cases,  the  tree,  by  reasoii  of  the  nourishment  dierived  from  both^ 
estates,  becomes  the  joint  property  of  the  owners  of  such  estates  , 
*  *  *  while  others,  with  better  reasons,  as  it  seems  to  me,.holdi 
41 


322  LAW    OF  BOUy BABIES. 

I 

that  the  tree  is  wholly  the  property  of  him  upon  whose  land  tlie 
trunk  stands"  {Duhois  v.  Beaver,  25  N.  Y.  II,  123, 126  ;  and  vide 
Hoffman  v.  Armstrong,  46  Barh.  B.,  337).  The  American 
authorities  seem,  also,  to  be  uniform  in  holding  that  a  tree,  stand- 
ing directly  upon  the  line  between  adjoining  owners,  so  that  the 
line  passes  through  it,  is  the  common  property  of  both  parties, 
M-hether  marked  or  hot;  and  that  trespass  will  lie  if  one  cuts  and 
desti'oys  it  without  the  consent  of  the  other.  This  was  held  by 
the  Supreme  Court  of  the  State  of  New  Hampshire  in  1845  {Grif- 
fin V.  Bixhj,  12  N.  II.  R.,  454) ;  and  precisely  the  same  doctrine 
was  laid  down  in  a  late  case,  decided  by  the  Supreme  Court  of  the 
:State  of  New  York,  in  which  Welles,  J.,  in  delivering  the  opinion 
of  the  court,  said:  "It  seems  to  be  well  settled  that,  where  a  tree 
•or  wall  is  in  the  division  between  two  adjacent  owners  of  land, 
they  are  owned  by  the  opposite  proprietors  of  the  land  as  tenants 
dn  common,  in  the  absence  of  any  agreement  to  the  contrary  " 
{Iloffman  v.  Arm-strong,  46  Ba?'!).  li.,  337,  339). 

But  in  a  previous  case  in  the  same  court,  while  the  liability  of 
■the  owners  of  a  tree  upon  the  boundary  line,  in  case  of  its  destruc- 
tion by  one  of  the  proprietors,  is  recognized  to  its  utmost  extent, 
the  doctrine  was  held  by  the  judge  who  gave  the  opinion  that  the 
owners  of  the  'tree  were  not  tenants  in  common,  and,  hence,  that 
an  action  of  trespass,  under  the  statute,  might  be  maintained  by 
one  adjoining  proprietor  of  lands  against  another  to  recover  treble 
damages  for  cuttinsr  trees  standing  on  the  line  between  the  lands 
of  the  parties ;  that  is  to  say,  the  value  of  such  proportion  of  the 
trees  as  was  on  the  land  of  the  former.  Hogeboom,  J.,  delivered 
the  opinion  of  the  court,  and  went  into  a  learned  and  technical 
argument  to  show  that  the  owners  of  a  line  tree  are  not  tenants  in 
common  of  the  trees;  but,  on  the  contrary,  that  the  portion  that 
grows  on  the  land  of  each  must  belong  separately  to  him,  and  not 
partly  to  him  aind  partly  to  his  neighbor.  And  the  learned  judge 
concluded  as  follows.:  "I  apprehend  a  line  tree  in  many  cases  can- 
not be  cut  and  destroyed::  1.  Because  it  is  a  line  tree,  and,  there- 
fore, necessary  to  be  preserved  as  a  natural  monument.  2.  Because 
the  cutting  or  destruction  of  one  part  will  or  may  result  in  the 
destruction  of  the  other  part.  The  act  seems  a  totally  unnecessary 
and  w'anton  one ;  and,  if  it  be  so  in  fact,  is  justly  punished  by 
treble  damages ;  and  I  have  no  doubt,  in  a  proper  and  sufficiently 


BOUyDARY   TREES  AND    HEDGES.  323 

important    case,    ma)-  l)e   restrained    by  injnnction "    {lieJyea  v, 
Bacon,  34  Barh.  B.,  547,  552). 

The  case  was  taken  to  tlie  Court  of  Appeals  of  the  State,  where 
the  judgment  of  the  Supreme  Court  was  affirmed;  but  it  would 
seem  that  the  higher  court  were  of  the  opinion  that,  where  a 
boundary  line  divides  the  trunk  of  a  tree,  it  belongs  to  the  adjoin- 
ing proprietors  as  tenants  in  common.  Allen,  J.,  who  delivered 
the  opinion  of  the  court,  said:  "It  is  not  necessary  to  determine 
M'hether  the  parties  were  technically  tenants  in  common  of  the 
trees  growing  upon  tlie  boundary  line  separating  their  respective 
farms,  with  all  the  ordinary  rights  and  incidents  of  such  an  estate. 
The  trees  thus  growing  are  called,  in  the  case,  'line  trees.'  By 
this,  I  understand,  is  meant,  not  trees  marked  and  set  apart  by 
the  parties  as  evidences  or  monuments  of  the  division  line,  but 
trees  deriving  their  nourishment  from  roots  extending  on  both 
sides  of  the  line,  and  with  bodies  so  directly  over  the  line,  and 
necessarily  on  both  sides  of  that  line,  that  it  could  not  be  deter- 
mined upon  which  side  of  the  line  the  tree  was  originally  planted. 
*  *  *  If  a  tree  grows  in  a  hedge  that  divides  the  land  of  A. 
and  B.,  and  by  its  roots  takes  nourishment  in  the  land  of  both, 
they  are  tenants  in  common.  *  *  *  Ordinarily,  ti-espass  will 
not  lie  by  one  tenant  in  common  against  his  co-tenant ;  but  where 
one  tenant  in  common  ousts  his  co-tenant,  ejectment  will  lie  at  the 
suit  of  the  latter;  and  where  one  tenant  in  common  destroys  the 
subject  of  the  tenancy,  trespass  will  lie  at  the  suit  of  the  injured 
party.  *  *  *  Here  there  was  a  total  destruction  of  the  trees, 
and  the  plaintiff  had  his  remedy  by  action  for  the  wrong  done. 
If  the  parties  were  not  tenants  in  common,  the  defendant  was 
clearly  a  trespasser  in  cutting  and  carrying  off  that  portion  which 
belonged  to  the  plaintiff — in  reality  as  'being  upon  his  land" 
{Dvhois  V.  Beaver,  25  iV^.  Y.  i?.,  123,  1-26-128).  It  seems  to 
have  been  agreed  between  the  judges  of  the  Supreme  Court  and 
the  Court  of  Appeals,  as  to  the  rights  and  liabilities  of  the  parties, 
in  the  case,  although  they  may  have  differed  as  to  the  technical 
principles  on  which  those  rights  and  liabilities  should  be  placed. 
It  may  be  important,  however,  in  some  cases,  to  have  the  question 
decided,  whether  the  objects  standing  upon  the  boundary  line 
between  adjacent  owners  are  OM'^ned  by  the  parties  as  tenants  in 
common  or  otlierwise.  The  essence  of  a  tenancy  in  common  is  a 
joint  interest  in   each  and  every  part  of  the  property;  and  it  is 


324  LAW  OF  BOUNDARIES. 

understood  that  this  principle  does  not  apply  to  artificial  objectg 
]ilaeed  upon  the  line  by  the  hand  of  man.  such  as  a  wall,  a  fence, 
a  house,  or  a  building  of  any  description  ;  but  there  are  reasons 
which  niight  enter  into  the  rule  in  respect  to  such  objects,  which 
would  not  be  equally  pertinent  in  regard  to  natural  objects.  And 
in  regard  to  timber  trees,  for  example,  standing  upon  the  line,  it 
might  be  inconvenient  for  the  parties  to  avail  themselves  of  their 
property,  unless  they  were  regarded  as  tenants  in  common.  One 
of  the  parties  might  desire  his  proportion  of  the  timber  of  the 
trees,  while  the  other  prefers  that  the  trees  should  remain  stand- 
ing, and  will  not  consent  to  their  severance.  If  the  parties  are 
tenants  in  common,  in  such  a  case  the  remedy  is  clear;  a  partition 
or  sale  of  the  trees  may  be  ordered.  If  they  are  not  so  regarded 
the  remedy  may  not  be  so  clear.  It  may  be  suggested,  therefore, 
that  in  case  of  tiniber  trees  and  the  like,  standing  upon  the  line,  it 
may  be  more  convenient,  at  least,  to  hold  that  the  parties  are 
tenants  in  common  of  such  objects.  Where  the  objects  on  the  line 
are  wantonly  severed  or  destroyed  by  one  of  the  parties,  the  other 
owner  has  his  remedy,  whichever  rule  applies.  But  where  the 
line  objects  are  destroyed  by  outside  trespassers,  or  one  only  of  the 
pro])rietors  wishes  to  withdraw  his  interest  in  the  property,  the 
difference  in  the  rule  may  be  important. 

It  seems  to  be  agreed,  both  by  the  laws  of  this  country  and  of 
England,  that  trees  whose  trunks  stand  wholly  upon  the  land  of 
one  owner  belong  exclusively  to  him,  although  the  roots  grow  into 
and  their  branches  overhang  the  land  of  another.  But  how  shall 
the  owner  avail  himself  of  the  benefit  of  these  overhanging 
branches  or  protruding  roots,  or  of  the  branches  or  fruit  which, 
perchance,  may  fall  upon  the  adjoining  property?  The  question 
of  the  title  to  the  property  is  well  settled ;  but  can  the  owner 
avail  himself  of  it  without  subjecting  himself  to  an  action  on  the 
2):irt  of  the  adjoining  owner? 

It  is  laid  down  in  Yiner's  Abridofinent  that  if  trees  o-rowinc;  in 
a  hedge  hang  over  another  man's  land,  and  the  fruit  of  them  falls 
into  the  other's  land,  the  owner  of  the  fruit  may  go  in  and  retake 
it,  if  he  makes  no  longer  stay  than  is  convenient,  nor  breaks  the 
hedge  ( Vln.  Abr.,  tit.  Trespass,  I.  a.,  and  Trees,  E.  /  and  vide 
M'Jlen  V.  Faudye,  Poj[)ham''s  R.,  103).  The  same  rule  has  been 
held  to  apply  where  trees  are  blown  down  by  tire  wind,  or  fall 
over  In'  any  other  unavoidable  accident  (  Viner''s  Abr.,  Trespass, 


BOUNDARY  TREES  AND   HEDGES.  325 

11.  a.  2,  and  note;  and  vide  Dyke  v.  Dunstan,  6  ^dw.^ ^.fol.J 
vl   IS,  cited  in  Smith  v.  Kenrick,  7   Com.  Bench  R.,  51d   563). 
The  owner,  however,  in  such  cases,  cannot,  without  special   cir- 
cutnstances  to  justify   it,  make  such  an  entry  without  previous 
request  to  the  occupier  upon  whose  hxnd  the  fruit  or  ti^es  had 
fallen      Should  the  latter,  after  such  request,  retuse  to  deliver  np 
the   property,  or   to   answer   the   owner's  demand    a   conversion 
Hiicdit  be  presumed,  and  the  owner  of  the  .^oods  might  thereupon 
enilr  and  take  his  property,  subject  to  any  damage  he  might  com- 
mit, or  bring  his  action  for  the  conversion  -^ ^^^^  V^-^^^'^l^'"'^ 
recover  its  value  {Anthoneij  v.  Ilaney,  8  Bingham  8  R-.^^^'^f'- 
C     Ih     193)      This  doctrine  is  upon  the  same  principle  whicii 
obtains 'in  the  case  where  a  person  places  the  goods  of  another  on 
his  own    close,  in  which   case   he   gives   the   owner   of  them   an 
implied  license  to  enter  for  the  purpose  of  recaption  (/  atncfc  v. 
Colerich,  3  3Iees.  <&  Welsh.  B.,  485).     By  the  civil  law,  the  pro- 
prietor upon  whose  land  fruit  had  fallen  from  trees  belonging  to 
an  adjoining  proprietor  was  obliged  to  permit  it  to  be  gathered; 
and  this  right  might  have  been  enforced  against  him  by  the  inter- 
dict de  glande  legenda  [Colquhoun-'s  Summary,  §  993). 

The  American  doctrine  upon  the  subject  is  the  same  as  upon 
the  other  side  of  tlie  Atlantic.     A  case  substantially  in  pomt  was 
decided  by   the   Supreme  Court  of   the  State  of  New  1  ork,  in 
1866,  and  hereinbefore  referred  to   upon  another  branch  of  the 
subjJct.     The  action  was  for  an  assault  and  battery.     The  defend- 
ant and  one  Dr.  Hoffman,  the  brother  of  the  plaintiff  and  with 
whom  she  resided,  were  the  owners  of  adjoining  lots.     A  cherry 
tree  stood  upon  the  land  of  Dr.  Ilofl^nan,  with  limbs  overhanging 
the  land  of  the  defendant.     The  plaintiff  undertook  to  pick  the 
cherries  from  the  limbs  of  the   tree  which  overhung  the  defend- 
ant's land.     The  defendant  forbade  her  doing  so;  and  she  still 
persisting,  the  defendant  attempted  to  prevent  her,  by  force,  and 
she  was  somewhat  injured.     The  jury  found  a  verdict  in  favor  of 
the  plaintiff  for  $1,000,  on  which  judgment  was  entered,  and  the 
defendant  appealed  to  the    General  Term,  where   the  judgment 
was  affirmed,  and   the   following  proposition,  among  others,  was 
laid  down  by  the  court:  "  If  the  owner  of  land  overhung  by  the 
branches  of"^a  tree  growing  upon  the  adjacent  lot,  attempts  by  vio- 
lence to  prevent  the  owner  of  the  adjacent  lot  from  picking  the 
fruit  on    the  overhanging  branches,  he  is  a  wrong-doer,  and   an 


\ 


32(5  LAW   OF  BOUNDARIES. 

action  for  an  assault  and  battery  may  be  maintained  against  liim  '* 
{Hoffman  v.  Armstrong,  46  Barh.  B.,  337). 

But,  although  sucli  is  the  law,  it  does  not  follow  that  the  owner 
is  obliged  to  have  his  land  burdened  by  the  overhanging  branches 
of  the  trees  of  his  neighbor ;  because,  if  they  prove  to  be  a  nui- 
sance, he  has  his  action  for  the  damages,  and  that  the  same  be 
abated  {Vide  Iloff'tnan  v.  Armstrong,  supra  ;  Ailenx.  KetGhum, 
39  Barh.  R.,  400).  Whatever  unlawfully  annoys  or  does  damage 
to  another  is  a  nuisance,  and  such  nuisance  may  be  abated,  that  is, 
taken  away  or  removed  by  the  party  aggrieved  thereby,  so  long 
as  he  commits  no  riot  in  the  doing  of  it  {Perry  v.  Fitzhowe,  8 
Queen's  Bench  B.,  776 ;  Jones  v.  Jones,  1  llurlstone  <&  Coltman's 
B.,1;  3  Black.  Com.,  6).  If  the  boughs  of  one  adjoining  pro- 
prietor grow  out  into  the  land  of  another,  this  is  held  to  be  a  pri- 
vate nuisance,  and  they  may  be  cut  down ;  but  they  cannot  be  cut 
down  before  they  grow  over  for  fear  they  should  eventually 
become  a  nuisance  {Norris  v.  Baker,  1  Bolle's  B.,  394;  Viner's 
Ahr.,  Trees,  E.).  The  same  rule  has  been  supposed  to  be  applica- 
ble to  roots  encroaching  upon  the  neighboring  soil,  although  the 
author  has  found  no  case  in  which  the  doctrine  has  been  decided 
(  Vide  Gale  on  Easem.ents,  ^th  ed.,  467). 

If  the  occupier  of  land  suffer  his  trees  so  to  protrude  over  the 
highway  as  to  inconvenience  passers  by,  this  is  held  to  be  a  com- 
mon nuisance,  and  the  trees  may  be  lopped  sufficiently  to  avoid 
the  evil  by  any  person  having  occasion  to  pass  that  way,  for  any 
one  may  justify  the  removal  of  a  common  nuisance  {Earl  of  Lons- 
dale V.  Nelson,  2  Barn.  &  Cres.  B.,  311).  And  the  reason  why 
the  law  allows  this  private  and  summary  method  of  doing  one's 
self  justice,  is  because  injuries  of  this  kind,  which  obstruct  or 
annoy  such  things  as  are  of  daily  convenience  and  use,  require  an 
immediate  remedy,  and  cannot  w^ait  for  the  slow  progress  of  the 
ordinary  forms  of  justice  (3  Black.  Com.,  6).  It  has  been  held  in 
England,  however,  that  this  principle  has  no  application  where  a 
fence  belonging  to  a  railway  company  obstructs  a  thoroughfare  ; 
in  such  a  case  the  public  have  no  right  to  prostrate  it ;  but  a  man- 
damus must  be  applied  for,  or  some  other  remedy  sought  {Ellis  v. 
London  and  South-  Western  Ballway  Company,  2  llurlstone  <& 
Norman's  B.,  424  ;  Wyatt  v.  Great  Western  Ballway,  6  Best  <& 
Smith's  B.j  709).  But  the  rule  will  doubtless  apply  to  the  case 
of  overhanging  branches  of  trees,  and  the  like,  which  cause  a  sub 


BOUNDARY  TREES  AND   HEDGES.  327 

stantial  damage  to  the  owner  of  the  lands  encroached  upon.  It 
has  been  held  b}^  tlie  English  courts  in  one  case  at  nisi  prius, 
wliereiii  it  appeared  that  a  Yirginian  creeper  extended  itself  over 
tlie  house  of  the  defendant,  whereupon  lie  cut  it  and  cleared  it 
from  his  house,  that  tlie  defendant  had  a  right  to  abate  it,  as  a 
nuisance.  This  was  admitted,  and  the  only  question  which  was 
contested,  was  whether  the  defendant  had  used  greater  force  and 
violence,  and  had  done  greatei-  damage  than  was  necessary  {Plch- 
eri/ng  v.  Budd^  1  Starkle's  12.,  56;  vide  IlougJdon  v.  Butler,  4 
Term,  i?.,  364 ;  Rolerts  v.  Rose,  3  Hurl.  &  Colt.  R.,  162 ;  *S'.  C, 
4  Ih.,  103).  Of  course,  in  abating  a  nuisance  arising  from  over- 
lianging  branches,  care  must  be  taken  to  cut  off  only  so  much  as 
actually  overhangs  the  land  of  the  party  injured,  or  the  person 
abating  the  nuisance  may  subject  himself  to  heavy  damages  (  Yide 
Traherii's  Case,  GodhoWs  R.,  233 ;  Batlier's  and  >Simpson\^ 
Case,  9  Coke's  R.,  53  ;  Rex  v.  Pappineati^  2  Strange' s  R.,  686  ; 
Cooper  V,  Marshall,  1  Burrow's  R.,  268). 

A  man  raa}'^  justify  entering  the  land  of  another  to  abate  a 
nnisance,  but  before  entry  it  is  alwa^'s  advisable  to  give  notice  to 
the  other  proprietor,  in  order  that  he  may  have  an  opportunity  of 
removiuir  the  obstruction  himself  before  another  intrudes  on  his 
land  {Davies  v.  Williams,  16  Queeii's  Bench  R.,  556).  Said  Best, 
J.,  in  giving  the  opinion  in  a  case  decided  by  the  English  Court 
of  King's  Bench:  "Nuisances  by  an  act  of  commission  are  com- 
mitted in  defiance  of  those  whom  such  nuisances  injure,  and  the 
injured  party  may  abate  them  without  notice  to  the  person  who 
committed  them  ;  but  tliere  is  no  decided  case  which  sanctions  the 
abatement,  by  an  individual,  of  nnisances  from  omission,  except 
that  of  cutting  the  branches  of  trees  which  overhang  a  public  road, 
or  the  private  propert}^  of  the  person  who  cuts  them.  The  per- 
mitting these  branches  to  extend  so  far  beyond  the  soil  of  the 
owner  of  the  trees,  is  a  most  unequivocal  act  of  negligence,  which 
distinguishes  this  case  from  most  of  the  other  cases  that  have 
oecni-red.  The  security  of  lives  and  property  may  sometimes 
requii-e  so  speedy  a  remedy  as  not  to  allow  time  to  call  on  the  per- 
son on  whose  property  the  mischief  has  arisen  to  remedy  it.  In 
such  cases  an  individual  would  be  justified  in  abating  a  nnisance 
from  omission  withont  notice"  {Earl  of  Lonsdale  v.  Nelson,  2 
Barn,  d;  Cres.  R.,  311  ;  and  vide  Jones  v.  Williams,  11  Jfees.  ck 
Welsh.  R.,  181).     But  it  is  always  prudent  to  give  notice  b(?fore 


328  LAW   OF  BOUyDARIES. 

proceedirii^  to  abate  the  nuisance  Ly  force  of  Land.  It  has  been 
held  bv  the  English  courts  that  it  is  always  necessary  to  give  a 
notice  to  the  mere  continuer  of  a  nuisance  before  the  party 
aggrieved  can  take  the  law  into  his  own  hands  (  Vide  Penrud- 
doclc's  Case^  5  Cokes  li.,  100,  101  ;  ^Vinsrno7'e  v.  Greenbank, 
WdWs  R.,  583;  Salmon  v.  Beuedey,  1  Ilyan  d;  Moodtfs  li.,  189  : 
Jones  V.  Williams,  11  Mees.  (&  Welsh.  Jx.,  17 Q,1S1).  In  all  cases 
of  private  nuisance,  the  party  injured  may  proceed  by  action  to 
have  it  abated  (  Winierhoifom  v.  Lord  Derh>/,  2  Z.  H.,  Ewch.,  31 G  ; 
Pickett  V.  Metrojjolitan  Railway  Company,  5  Best  cfe  SmitlCs  R., 
15G). 

By  the  French  Code,  he  whose  property  is  overshadowed  by  tlie 
branches  of  his  neighbor's  trees  may  compel  the  latter  to  cut  off 
such  branches.  H  it  be  the  roots  which  encroach  on  his  estate, 
he  has  a  right  to  cut  them  therein  himself  {Code  Napoleon,  art. 
672). 

By  the  Biinnin  law,  if  a  tree  on  a  bouTidary  line  injured  the 
property  of  another  in  a  town,  the  owner  of  tlie  tree  might  be 
required  to  cut  it  down  altogether ;  but  if  the  property  were  in 
the  country,  he  could  only  be  required  to  trim  the  branches  fifteen 
feet  up  from  the  ground,  and  no  higher,  whatever  the  inconvenience 
niiglit  1)0  to  his  neighbor.  If  the  l>arty  complained  against  refused 
to  remove  or  lop  the  tree,  the  interdict  de  arhoriljus  ccedendis  lay 
against  liim  at  the  instance  of  the  other  party,  who  might  appro- 
priate the  wood  to  himself  {GolqiihoaiC s  Summary,  §§993,  2305). 


CHAPTER  XXYII. 

THE  LAW  RELATING  TO    THE  BOUNDARIES   OF   PARISHES SOME  POINTS 

OF    INTEREST     RESPECTING     BOUNDARIES     NOT     HEREINBEFORE     DIS- 
TINCTIVELY NOTED  —  THE  POINTS  PROMISCUOUSLY  STATED. 

It  will  be  convenient,  especially  in  some  |)ortions  of  this  coun- 
try, that  some  general  observations  be  made  in  respect  to  tlie  law 
relating  to  tlie  boundaries  of  parishes.  According  to  Sir  William 
Blackstone,  "  the  division  of  the  country  into  parishes  probably 
took  [ilace  not  all  at  once,  but  by  degrees.  For  it  seems  pretty 
clear  and  certain  tliat  ihe  boundaries  of  parishes  were  originall}' 


BOUXDARY  OF  PARISHES.  o2J 

ascertained  by  those  of  a  manor  or  manors  ;  since  it  very  seldom 
happens  that  a  manor  extends  itself  over  more  parishes  than  one, 
though  there  are  often  many  manors  in  one  parish.     The  lords,  as 
Christianity  spread  itself,  began  to  build  churches  upon  their  own 
demesnes  m- wastes  to  accommodate  their  tenants  i.i  one  or  two 
adioinini,  lordships  :  and,  in  order  to  have  divine  service  regularly 
pertormed  therein,  obliged  all  their  tenants  to  appropriate  their 
tithes  to  the  maintenance  of  the  one  officiating  minister,  instead  ot 
leavino-  them  at  liberty  to  distribute  them  among  the  clergy  ot  the 
diocese  in  <,eneral ;  and  this  tract  of  land,  the  tithes  whereof  were 
so  appropriated,  formed  a  distinct  parish,  Avhich  will  well  enough 
account  for  the  frequent  intermixture  of  parishes  with  one  another. 
For  if  a  lord  had  a  parcel  of  land  detached  from  the  mam  ot  his 
estate  but  not  sufficient  to  form  a  parish  of  itself,  it  was  natural 
for  hiin  to  endow  his  newly  erected  church  with  the  tithes  of  those 
disjointed  lands;   especially  if  no  church  was  then  built  m  any 
lordship  adjoining  to  those  outlying  parcels"  (1  Blach  Com.,l\6 
lU)      And  it  was  declared  in  the  Court  of  Exchequer  of  England, 
in  a  case  decided  some  forty  years  ago,  that  "the  boundaries  of 
parities  were  settled  long  after  the  foundation  of  churches;  and 
those  ecclesiastical  districts,  formerly  belonging  to  parishes  at  their 
first  institution,  have  been  since  much  varied,  and  in  many  cases 
abridged  and  narrowed,  when  new  churches  were  bmlt'   {Lonsiey 
V.  Ilayward,  1  Younge  dj  Jet-vis'  B.,  5SG). 

It  seems  that  a  district  may  belong  to  one  parish  lor  ecclesias- 
tical purposes,  and  be  joined  to  another  parish  or  townsliip  lor 
civil  purposes.     In  a  late  case  before  the  English  Court  of  Queen  s 
Bench  it  appeared  that  the  district  of  Tranly  lay  adjacent  to  the 
two  parishes  of  Ilessele  and  Kirk  Ella,  in  Yorkshire,  which  were 
both  immemorial  parishes,  each  having  a  church.     For  a  hundred 
years  and  more  the  lands  of  Tranly  had   been  rated  to  the  poor 
and  hio-hway  rates  of  Ilessele,  and  the  overseers  and  surveyors  of 
Hessele  had  always  acted  for  Tranly  as  if  it  were  part  ot  their  dis- 
trict     But  the  lands  in  Tranly  from  the  earliest  period  had  been 
tithable  to  Kirk  Ella  as  if  they  were  situate  in  that  parish;  and 
as  to  all  ecclesiastical  matters  Tranly  had  uniformly  aud  imuiemo- 
riallv  been  treatpd  and  reputed  as  part  of  the  parish  ot  Kirk  Ella. 
Tranlv  having  been  rated  to  the  relief  of  the  poor  of  the  parish 
of  Ilessele  appealed  against  the  rate,  which  was    however,  con- 
firmed by  the  Court  of  Queen's  Bench,  on  a  special  case  stated  ioi 
42 


330  ^'^^^^   0^  BOUNDARIES. 

their  opinion,  on  the  ground  tliat  a  usage  which  had  existed  so 
long  ought  to  he  supported,  unless  it  could  he  clearly  shown  that 
it  could  not  have  had  a  legal  origin  ;  and  because  there  was  no 
rule  of  law  wliich  prevented  Tranly  from  belonging  to  one  parish 
for  civil  and  to  another  for  ecclesiastical  purposes  {Regina  v.  Wat- 
son, 9  Best  (&  Smith's  7?.,  219 ;  S.  C,  3  Z.  i?.,  Q.  B.,  702). 

Every  town  in  the  State  of  Massachusetts  is  considered  to  be 
a  parish  until  a  separate  parish  is  formed  within  it ;  and  then  the 
inliabitants  and  territory  not  included  in  this  separate  parish  con- 
stitute the  fii'st  parish  {Brunswich  v.  Dunning,  7  Mass.  R.,  445). 
The  erecting  of  a  poll-parish,  under  the  Massachusetts  statute  of 
17S6,  chapter  10,  has  this  effect  as  much  as  the  erecting  of  a  parisli 
circumscribed  by  one  continuous  line,  and  in  which  all  the  lands 
shall  join  and  be  continuous  to  each  other  {Minot  v.  Curtis,  7 
Ifass.  B.,  441).  And,  Avhen  incorporated,  such  poll-parish  is 
considered  as  "  set  off"  from  the  town  {Sutton  v.  Cole,  8  Mass. 
R.,  96). 

Parishioners  may  justify  going  over  any  man's  land  in  their 
perambuhitions  according  to  their  usage,  and  may  abate  all  nui- 
sances in  their  way  {Goodday  v.  Michell,  Cro.  Eliz.,  441;  S.  C, 
Owen''s  R.,  71).  But  a  custom  for  the  inhabitants  of  a  parish  to 
enter  a  particular  house,  which  is  neither  upon  the  boundary  line 
nor  in  any  manner  wanted  in  the  course  of  the  perambuhitions, 
cannot  be  supported  {Taylor  v.  Davey,  7  Adolph.  <&  Ellis''  R., 
409,  416 ;  vide  Ij^swich  Bocl's  v.  St.  Peter's,  7  Best  <&  Smith's 
R.,  310,  346). 

If  a  parish  extends  to  a  tidal  river,  it  cannot  be  assumed,  in  the 
absence  of  evidence,  to  extend  beyond  the  line  of  ordinary  high- 
water  mark  {Bridgewater  Trustees  v.  Bootle-cum-Linacre,  Law 
R.,  22,  B.  4).  But  it  has  been  hereinbefore  shown  that  where 
the  lands  of  two  proprietors  are  separated  by  a  road  or  private 
stream,  the  line  dividing  the  properties  is  presumed,  in  default  of 
evidence  to  the  contrary,  to  coincide  with  the  medium  Jilum  of 
the  road  or  stream ;  and  a  like  presumption  exists  where  two  par 
ishes  are  separated  by  a  highway  or  an  unnavigable  river.  In  a 
case  in  the  English  Exchequer  Chamber  it  appeared  that  the 
statute  30  Car.  II  had  carved  the  parish  of  St.  Anne,  Soho,  out  of 
the  parish  of  St.  Martin's-in-the-Fields,  and  it  described  the  north- 
ern boundary  of  the  former  parish  thus :  "  AVitli  all  the  houses 
and  grounds  abutting  on  and  upon  the  said  road  (Oxford  street) 


BOUNDARY  OF  PARISHES.  33 ^ 

leading  from  the  sign  of  the  Eed  Cow  to  the  sign  pf  the  Crooked 
Billet."  By  2  Will,  and  M.,  chap.  8,  all  streets  in  London  and  West- 
minster were  to  be  paved  at  the  costs  of  the  householders  in  such 
streets,  each  paving  to  the  middle  of  the  street  in  front  of  his 
house.  By  10  Geo.  Ill,  chap.  23,  section  10,  such  portion  of  Oxford 
street  as  lay  in  certain  parishes,  of  which  St.  Anne's  was  one,  was 
declared  to  be  within  the  parish  of  St.  Marylebone,  with  reference 
to  paving,  lighting  and  cleansing.  From  the  year  1771  to  the 
year  1855  rates  were  made  under  this  last  statute  upon  the  occu- 
piers of  the  houses  on  the  south  side  of  Oxford  street  towards  the 
paving  of  the  street  by  the  parish  of  St.  Marylebone,  which  was 
coterminous  with  the  parish  of  St.  Martin's-in-the-Fields  on  the 
north.  It  appeared  that  for  the  last  thirty  years  the  parishioners 
of  St.  Marylebone  had  perambulated  the  boundaries  of  their  parish 
to  the  middle  of  the  road  in  Oxford  street ;  while,  on  the  other 
hand,  the  parishioners  of  St.  Anne,  Soho,  had  perambulated  their 
parish  only  to  the  pavement  on  the  south  side.  An  old  map, 
dated  1771,  in  the  possession  of  the  parish  of  St.  Marylebone, 
shows  the  boundary  line  to  be  drawn  along  the  center  of  Oxford 
street.  On  the  6th  of  May,  1857,  the  board  of  works  made  an 
order  under  section  140  of  18  and  19  Vict.,  chap.  120,  by  which  the 
whole  of  Oxford  street  was  placed  under  the  management  of  the 
vestry  of  St.  Marylebone  for  the  purpose  of  paving,  etc.  The 
vestry,  having  put  in  repair  the  whole  of  the  said  street,  made  an 
order  upon  the  Strand  district  of  the  board  of  works,  wliicli 
includes  the  parish  of  St.  Anne,  Soho,  for  tlieir  share  of  the 
expenses,  and  in  consequence  of  the  refusal  of  the  board  to  pay 
the  same  a  mandamus  issued  against  them.  The  point  having 
come  before  the  Court  of  Queen's  Bench  on  a  special  case  stated 
for  their  opinion,  Cockburn,  Ch.  J.,  made  the  following  remarks: 
"  The  question  is  wdiether  the  words  used  in  the  act  include  that 
portion  of  the  street  which  is  between  the  houses  and  the  medium 
Jilmn  of  the  street.  It  is  said,  on  the  part  of  the  defendants,  that 
they  do  not ;  because,  if  it  had  been  intended  that  the  parish 
should  extend  to  the  tnedimii  filiim,  those  words  would  have 
been  introduced,  or  the  boundary  of  that  part  of  the  parish  would 
have  been  described,  as  '  the  said  road.'  It  is  clear  that  to  put 
this  Construction  on  the  act  of  Charles  II  would  lead  to  great 
inconvenience;  and  I  see  nothing  in  the  words  which  should  lead 
us  to  adopt  it.     In   conveyances  and  acts  of  Parliament   upon 


S 82  LAW  OF  BO UNDA RIES. 

which  questions  of  law  have  arisen,  wliere  land  was  eonveyed  or 
a  district  constituted  witli  specific  boundaries,  and  one  of  tlieni 
consisted  of  a  hi<^h\vay  or  a  river,  we  never  find  it  described  as 
the  7rLedmrn  filitia  of  the  liighway  or  river;  and  it  is  clear,  espe 
cially  since  the  case  of  Berridge  v.  Ward  (10  C.  B.,  N.  S.,  400), 
that  if  language  like  the  present  had  appeared  in  an  ordinary  con- 
veyance it  would  have  been  considered  as  including  the  land  ad 
medium  filum  vice.  Then  why  should  we  put  a  different  con- 
struction upon  this  act  of  Pai-liament?  *  *  *  Besides,  we 
ought  to  give  some  effect  to  the  legal  presumption  which  arises 
liere.  Before  the  passing  of  the  act  of  30  Gar.  II,  the  parishes  of 
St.  Martin's-in-the-Fields  and  St.  Marylebone  were  coterminous, 
divided  by  a  great  highway,  now  known  as  Oxford  street,  and  the 
ordinary  presumption  of  law  would  be  that  the  highway  which 
divided  the  parishes  was  divided  ad  medium  filum  between  them. 
Tliat  being  so,  and  there  being  no  evidence  to  controvert  that 
presumption,  if  we  held  that  language  of  the  statute  made  the 
parish  of  St.  Anne  extend  ordy  to  the  front  of  the  walls  cf  the 
houses  on  the  south  side  of  Oxford  street,  it  would  follow  that,  the 
highway  between  St.  Martin's-in-the-Fields  and  St.  Marylebone 
liaving  been  formerly  divided  between  those  two  parishes,  all  that 
part  of  Oxford  street  which  now  lies  between  the  medium,  filum 
vice  and  the  frontage  of  the  houses  in  the  parish  of  St.  Anne  would 
still  be  in  the  parish  of  St.  Martin.  The  Legislature  could  never 
have  intended  anything  so  monstrous"  {^Regina  v.  The  Board  of 
Works  for  the  Strand  District,  4  Best  &  Smith'' s  R.,  551). 

Where  two  parishes  are  separated  by  a  private  river,  and  there 
is  no  positive  evidence  of  the  boundary  line  between  them,  it  is 
to  be  presumed  to  coincide  with  the  middle  line  of  the  channel 
(  Vide  Bridgewater  Trustees  v.  Bootle,  7  Best  &  Smith's  7?.,  4 ; 
S.  a,  2  Z.  B.,  Q.  B.,  348;  McCannon  v.  Sinclair,  2  Ellis  dj 
Ellis'  li.,  53).  And  it  has  been  before  shown  that  the  shores  of 
the  sea  and  the  beds  of  public  rivers  kvq  priina  facie  extra-paro- 
chial, but  that  such  presumption  maybe  rebutted  by  evidence 
{Regina  v.  Musson,  8  Ellis  &  Blacl'hur7i's  R.,  900). 

There  are  still  some  other  points  of  more  or  less  interest  which 
have  been  settled  by  the  courts  in  respect  to  the  law  of  bounda- 
ries, and  which  did  not  seem  to  fall  nnder  any  head  of  the  sub- 
ject as  ordinarily  treated,  and  these  points  will  be  briefly  digested 
in  the  remainder  of  this  chapter. 


MISCELLANEOUS  POINTS.  333 

Where  a  ditch  formed  the  boundary  between  the  lands  of  the 
plaintiff  and  those  of  one  P.,  and  an  obstruction  liad  been  placed 
tlierein  by  the  plaintiff,  with  the  consent  of  P.,  in  order  to  prevent 
sand  from  being  carried  down  and  choking  a  ditcli  of  his  own, 
the  courts  of  North  Carolina  held  that  trespass  was  not  the 
proper  form  of  action  to  redress  an  injury  (the  choking  of  the 
plaintiff's  ditch)  caused  by  the  defendant  removing  so  mucli  of 
such  obstruction  as  was  upon  P.'s  half  of  the  boundary  ditch  ; 
the  latter  having  consented  to  such  removal  {Ilogwood  v.  Edwards, 
1  Fhill  L.  R.,  350). 

The  owners  of  a  tract  of  land,  about  the  boundaries  of  which 
there  was  no  dispute,  were  agreed  that  one  of  them  was  entitled 
to  150  acres,  to  be  taken  off  the  southern  part  of  the  tract  by  a 
line  to  be  run  parallel  with  the  southern  boundary  of  the  tract. 
A  surveyor,  who  was  employed  by  the  owners  to  run   the  line 
separating  the  150  acre  piece  from  the  remainder  of  the  land, 
made  a  mistake,  by  which  less  than  150  acres  was  included  in  the 
southern  division.     The  Supreme  Court,  before  whom  the  case 
came  for  adjudication,  held  that  the  survey  was  not  conclusive 
upon  the  parties.     And  the  further  proposition  was  declared,  that 
an  owner  of  land  who  points  out  his  boundary  to  a  person  about 
to  purchase  adjoining  land,  is  not  thereby  estopped  from  claiming 
beyond  such  boundary  when  his  representations  were  not  acted 
upon  by  the  purchaser  {RusseWs  Adni'r.  v.  Maloney,  39  Vt.^  R., 
579).     But  a  proprietor  who  points  out  to  a  settler  on  land  adjoin- 
ing his  own,  a  line  as  the  true  boundary,  acquiescing  and  assisting 
him  in  a  settlement  and  improvements  tliereon,  is   thereby  estop- 
ped from  afterward  asserting  claim  to  the  land  covered  by  the 
improvements,  though  a  subsequent  survey  proved  it  to  be  his  own 
land  {Jordan  v.  I)eato?i,  23  Ark.  R..  704).     However,  where  par- 
ties agree  upon  a  division  line  between  their  land,  under  a  mis- 
take, °and  occupy  eacli  liis  own  part  respectively,    they  are  not 
thereby  estopped  from  asserting  any  other  line,  provided  the  rights 
of  innocent  third  parties  have  not  intervened  {Knowlton  v.  Smith, 
36  Mo.  R.,  507 ;  and  vide  Liverpool  Wharf  v.  Prescott,  7  Allen's 

R.,  494). 

In  an  action  of  ejectment,  where  tlie  question  was  as  to^  the 
proper  location  of  a  warrant,  and  there  was  proof  of  an  admitted 
corner  of  an  adjoining  survey,  which  the  surveyor  under  the  first 
had  adopted,  protracting  a  line  from  it  and  giving  the  course  and 


334  i^Tr  OF  BOUNDABTES. 

distance  thereof  in  his  return  some  sixty  years  before  the  date  of 
the  competing  warrant  and  survey  ;  the  Supreme  Court  of  Penn- 
sylvania held,  that  it  was  error  to  instruct  the  jury,  that  before  they 
could  ado]jt  the  line  from  that  corner,  they  must  be  satisfied  that 
there  were  marks  on  the  ground  corresponding  with  the  date  of 
survey.  It  was  observed  that  such  instruction  would  be  fatal  to 
every  chamber  survey  on  record.  And  it  was  further  declared 
that  an}'  of  the  marks  of  an  older  survey  might  be  appealed  to  in 
fixing  the  location  of  a  younger  one,  and  that  it  was  the  duty  of 
surveyors  under  younger  warrants  to  adopt  such  ancient  land- 
marks i-ather  than  establish  new  ones  {Dreer  v.  Carskadden,  48 
Penn.  li.,  38 ;  and  vide  Bellas  v.  Cleaver,  40  ih.,  260).  And 
where  a  surveyor  sought  to  correct  and  enlarge  a  survey,  which 
lie  had  made  with  plainly  marked  lines  and  established  courses,  by 
simply  running  out  one  line  from  a  corner  of  the  tract,  establish- 
ino:  no  corner  there,  but  callino-  for  that  distance  in  his  field  notes. 
and  said  notes  called  for  the  bearing  trees  at  the  corners  estab- 
lished in  the  original  survey  ;  the  Supreme  Court  of  Texas  held, 
that  the  true  boundary  line  was  that  found  in  the  original  sur- 
vey, and  that  there  was  in  fact  no  correction  of  the  survey  at  all. 
And  it  was  further  held  that  the  marked  lines  and  corners  of  a 
survey  control  where  they  vary  from  the  calls  as  to  distance 
{Barileit  v.  Huhert,  21  Texas  R.,  8). 

In  an  action  before  the  Supreme  Court  of  California,  to  recover 
damages  for  trespass  in  working  across  the  boundarj^  line  of  the 
plaintifE's  mining  claim,  it  appeared  that  the  plaintiff  had  told 
the  defendant  that  he  need  not  be  uneasy,  for  he  had  fifty  feet  to 
run  before  he  would  reach  the  line.  The  court  held  this  not  to 
amount  to  a  license  to  the  defendant  to  work  on  the  plaintiff" 's 
land,  nor  to  an  estoppel  to  the  latter  from  recovering  the  damages 
he  had  actually  sustained.  It  was  held  that  the  defendant  was 
guilty  of  negligence  in  not  ascertaining  the  boundary,  as  he  could 
have  done  so  by  a  survey  {Maye  v.  Tappan,  23  Cal.  R.,  306). 
And  the  Supreme  Judicial  Court  of  Massachnsetts  has  held,  that, 
a  written  instrument  executed  by  the  proprietors  of  adjoining 
lands,  reciting  that  they  were  desirous  of  having  their  respective 
lines  run  so  that  each  might  know  his  true  boundary,  and  agreeing 
to  employ  a  survej^or  to  run  the  lines  and  put  up  stakes  or  marks 
to  designate  each  lot,  and  to  pay  the  expense  proportionally,  is 
not  an  agreement  in  the  nature  of  a  submission  to  arbitration,  so 


mSCELLANEOUS    t^OINTS. 


335 


as  to  make  the  lines  run  by  him  condnsive  upon  the  parties  to  it, 
and  it  was  further  hekl  that,  if  lines  have  been  run  by  a  surveyor 
at  the  common  expense  of  owners  of  adjoining  lauds,  and  boundary 
inarks  set  up,  and  one  party  adopts  a  line  thus  run,  and  budds  m 
conformity  with  it,  the  other  party  is  not  thereby  estopped  irom 
claiming  that  it  is  not  the  true  line,  if  it  does  not  appear  that  he 
knew  ti>at  the  other  was  incurring  expense  upon   the  iaith  ot  a 
supposed  agreement  to  treat  the  line  thus  run  as   the   true   one 
(TLer  V.Bacon,  3  Allen^s  B.,  163).     But  the  Supreme  Cour 
of  New  Hampshire,  on  the  contrary,  has  held  that  an  agreement 
between  owners  of  adjoining  lands,  that  the  line  between  them 
shall  be  ascertained  and  settled  by  a  surveyor,  is,  when  executed, 
conclusive  upon  them  and  all  claiming  under  them  ;  and  not  as  )n 
some  iurisdictions,  merely  strong  evidence  of  the  line.     And   it 
^vas  fu'rther  held,  that  possession  up  to  a  line,  run  by  asurveyor  in 
the  presence  and  by  direction  of  the  parties,  long  continued,  with- 
out question,  is  evidence  from  which  a  jury  may  infer  an  agree- 
ment of  the  parties,  that  the  line  so  run  should  be   conclusive 
mudley  V.  Flkim.  39  i\^.  //.  B-,  T8). 

Where  the  divisional  fence  between  the  lands  of  A.  and  b.  was 
a  stone  wall,  three  feet  wide,  set  wholly  on  the  land  ot  A.  ;  and 
P>  had   for  more  than  fifteen  years,  held  exclusive  possession  ot 
his  own  land  up  to  the  wall,  treating  the  center  of  the  wall  as  the 
dividino-  hue,  and  believing  it  to  be  so,  but  with  no  knowledge  of 
such    chiim    on  the  part  of  A.,    and  no  other  possession  of  the 
cround  covered  by  the  wall;  the  Supreme  Court  of  Errors  of 
Connecticut  held  it  was  a  sufficient  adverse  possession  to  vest  in  13. 
a  title  to  the  center  of  the  wall  {rhmtlngton  v.  Whaley,  29  Conn. 
H    391)      But  in  a  contest  of  boundary  between  two  parties  who 
have  purchased  adjoining  tracts  from  a  common  vendor,  the   luie 
^■hich  their  vendor  had  caused  to  be  run  as  the  dividing  line 
between  the  two  tracts  before  he  sold  them,  will  be  recognized  as 
the  dividing  line  between  the  two  parties  deriving  title  from  hnn 
Under  such  circumstances,  if  either  party  has  not  the  quantity  of 
land  called  for  by  his  title,  he  must  seek  it  from  his  vendor,  and 
not  from  the  proprietor  of  the  adjoining  tract,  who  does  not  claim 
or  possess  beyond  the  line  established  by  their  common  vendor. 
Audit  was  held  that,  in  such  a  case  the  plat  or  survey  ^nA proces 
roerUl  of  a  parish  surveyor  are  admissible  in  evidence  after  the 
death  of  the  surveyor  to  show  that  the  line  was  run  by  him  at  the 


gg()  LAW   OF  BOUXDAEIES. 

request  of  the  common  vendor,  and  that  he  considered  it  the 
boundary  of  the  two  tracts  which  had  been  divided  by  him,  and 
also  to  show  that  the  parties  bought  the  land  in  accordance  with 
the  lines  established  bv  the  survey,  and  that  the  defendant  took 
possession  and  cultivated  his  tract  according  to  it.  And  the  rule 
M-as  declared,  that  in  an  action  of  boundary,  a  division  line  which 
has  long  been  established  by  surveyor's  marks,  a  canal  and  fence, 
and  under  which  both  parties  bought,  and  which  is  referred  to  in 
the  act  of  sale,  will  be  taken  as  the  true  line  in  preference  to  a 
new  one  which  gives  to  one  of  the  parties  a  larger  boundary 
{Lebeaii  v.  Bergeron^  14  La.  An.  7?.,  489). 

The  Supreme  Court  of  Kew  Hampshire  has  held  that  it  is  not 
improper  for  a  witness  to  state  that,  among  other  indications  of 
the  existence  of  an  established  line,  he  noticed  a  ridge  of  land 
apparently  marking  the  interval  between  the  occupation  for  til- 
lage or  other  purposes,  on  the  one  side  and  the  other;  what  such 
ridge  indicates,  being  almost  as  much  a  matter  of  fact  and  observa- 
tion on  the  ground  as  its  existence  {IlaU  v.  Davis,  36  N.  II.  li., 
569).  And  the  Supreme  Court  of  Texas  has  held  that  the  acqui- 
escence of  the  proprietors  of  the  adjoining  lands,  in  a  particular 
line,  is  not  unfrequently  referred  to  and  received  as  evidence  to 
determine  their  boundaries;  and  that  prior  possession  is  notice  of 
the  claim  of  the  person  in  possession  to  the  purchaser  of  adjoining 
lands.  And  it  was  further  declared  that  what  are  boundaries  is 
matter  of  law ;  but  where  they  are,  is  a  matter  of  fact  {Bolton  v. 
Lann,  16  Texas  H.,  96).  But  a  division  line,  mistakenly  located 
and  agreed  on  by  adjoining  proprietors,  will  not  be  held  binding 
and  conclusive  on  them  if  no  injustice  would  be  done  by  disre- 
garding it  (MenTcens  v.  Blumentlial,  27  Miss.  R.,  198;  Gray  v. 
CouviUo7i,  12  La.  An.  i?.,  730).  However,  it  has  been  held  by 
the  Supreme  Court  of  Vermont  that  proof  that  parties,  expressly 
recognizing  a  particular  line,  agreed  to  build  the  fence  as  near  as 
might  be  convenient,  will  establish  the  line  which  the  parties  had 
in  view,  and  which  the  general  direction  of  the  fence  indicates 
{Clarl  V.  Taher,  28  Vt.  B.,  222). 

To  establish  a  conventional  boundary  line,  different  from  that 
apparently  indicated  by  a  prior  deed,  it  must  appear  that  both  the 
parties  to  the  convention  had  a  good  title,  or  subsequent  parties 
are  not  bound.  So  held  by  the  Supreme  Court  of  Tennessee 
{lioget's  v.  White,  1  Sneeds  B.,  68).     And  the  Supreme  Court  of 


JIISCELLAAEOrS   POINTS.  337 

Indiana  lias  lield  that,  to  suppoil  an  implied  agreement,  with 
reference  to  a  boiindaiy  differing  from  that  expressed  in  title- 
deeds,  an  acqniescence  of  at  least  twent}'  years  (the  statutory 
period)  is  requisite  {Ball  v.  Cox,  7  Lid.  E.,  458).  Though,  as  a 
general  rule,  "  an  admission  by  a  party  of  a  mistaken  line  for  the 
true  one  has  no  legal  effect  upon  his  title,"  still,  a  mutual  recogni- 
tion of  a  given  line  by  adjoining  proprietors,  accompanied  by 
actual  possession  of  one  or  both  for  the  period  of  fifteen  years,  in 
Yermont,  will  be  conclusive  as  to  their  respective  rights  {SjxiuhUiig 
V.  Warnm,  25  Vt.  i?.,  316;  cwd  vide  Brown  v.  Edaon,  23  ''do., 
425;  Cunningham  v.  lioherson,  1  Swan\<i  li.,  138),  And  ths 
Supreme  Court  of  Missouri  has  held,  that  where  the  owners  of  con- 
tiguous lots  agree  upon  a  dividing  line  between  lots,  and  use  and 
occupy  the  respective  lots  up  to  this  line  for  a  length  of  time  suffi- 
cient to  show  their  understanding  and  intention  —  though  much 
less  than  twenty  years  —  neither  of  them,  nor  those  claiming  under 
them,  can  afterward  set  up  a  dift'erent  common  boundary.  And 
it  was  declared  that  the  stiitute  of  frauds  did  not  interfere  in  such 
a  case  {Blair  v.  Smith,  16  2[o.  li.,  273).  And  the  same  court 
held,  in  a  subsequent  case,  that  it  was  not  necessai-y  to  pi-ove 
boundaries  by  a  plat  of  survey  or  field  notes,  but  that  they  might 
be  proved  by  a  witness  who  is  acquainted  with  the  corners  and 
old  lines,  though  he  never  saw  the  land  surveyed  (  Weaver  v.  Robi- 
neif,  17  Mo.  R.,  459). 

Where  a  specified  tract  of  land  is  sold  for  a  gi'oss  sum,  the 
boundaries  of  the  tract  control  the  description  of  the  quantity  it 
contains;  and  neither  party  can  have  a  remedy  against  the  other 
for  an  excess  or  deficiency  in  the  quantity,  unless  such  excess  or 
deficiency  is  so  gi'eat  as  to  fui-nish  evidence  of  fraud  oi-  misrepre- 
sentation. But  this  rule  does  not  apply  to  a  case  M-here  the  mis- 
take is  in  the  boundai-ies  of  the  tract  sold,  and  not  in  the  quantity 
of  acres  it  contains,  nor  wliei'e  the  deficiency  is  not  in  the  thing 
described,  but  in  the  ability  of  the  party  to  convey  the  same- 
(  Voorhees  v.  De  Meyer,  2  Barh.  R.,  37). 

A  parol  agreement  respecting  a  boundary,  made  while  a  i)artj 
is  only  an  accupant  without  title,  cannot  be  binding  ujjon  him. 
after  he  acquires  the  fee  {Crowell  v.  Maugh.'i,  2  Gdwanh  R.,  419).. 
But  the  compromise  of  a  doubtful  right  is  a  sufficient  considei'a- 
tion  to  establish  the  boundary  line  between  conflicting  titles;  and 
although,  in  nuiking  such  compromise,  tlie  parties  act  in  good 
43 


8.]8  LAW  OF  BOLWDARTSS. 

faith,  but  in  mutual  mistake  of  the  law,  it  will  bind  them  {McCoy 
V.  Ihitchlnson,  8  Watts  tfe  Serg.  Ji.,  GG).  So,  wltere  the  original 
boundaries  of  private  possessions  have  been  destroyed,  or  are 
unknown,  or  not  well  ascertained,  a  survey  made  by  tiie  owner,  in 
reasonable  conformity  with  the  calls  of  his  title-deed  or  papers,  is 
held  to  be  an  ascertainment  of  the  very  land  owned  by  him,  and 
to  conclude  him  on  principles  of  public  policy,  and  for  the  security 
and  repose  of  others.  But  whether  the  reason  of  the  doctrine 
applies  to  femes  covert,  qumre.  If  the  parties  know  where  the 
true  line  is,  and  by  agreement  nuike  another,  this  would  be  a 
parol  transfer  of  the  land,  and  would  be  void  by  the  statute  of 
frauds  {Yorliorough  v.  Alernathy,  1  Melgi  It.,  413). 

It  is  no  ol)jectlon  to  the  location  of  a  grant  that  the  quantity  is 
ascertained  to  be  more  than  four  times  the  amount  stated  in  the 
grant,  or  that  the  lines  are  prolonged  greatly  beyond  the  distances, 
or  that  course  is  sometimes  disregarded  {Fulwvod  v.  Graham,  1 
Itichardsori's  It.,  491).  And  a  grantee  of  lands  may  claim  all 
included  within  the  deed,  as  designated  by  monuments,,  courses 
and  distances,  although  the  premises  are  described  as  containing 
200  acres,  strict  measure,  and  no  more  {Jacl:son  v.  McConnell,  19 

Wend.  Ji.,  175).  So,  if  a  vendor  hold  two  tracts  adjoining,  and 
sell  a  certain  quantity  by  metes  and  bounds,  though  the  deed  call 
for  one  tract,  yet  if  the  metes  and  bounds  run  into  the  other  the 
purchaser  will  hold  according  to  the  metes  and  bounds  (  Wallace 
V.  Maxwell,  1  J.  J.  MarshaWs  B.,  447).  A  conveyance  by  metes 
and  bounds  will  carry  all  the  land  included  within  them,  altliough 
it  be  more  or  less  than  is  stated  in  the  deed  {Beldeii  v.  Seymour, 
8  Conn.  li.,  19;  Pernam  v.  Wood,  6  Mass.  IL,  131;  Jackson  v. 
Ives,  9  Cow.  R.,  661 ;  Mundell  v.  Perry,  2  Gill  d?  Johns.  E. 
206 ;  Jackson  v.  ISprague,  1  Paine^s  P.,  494). 

The  proprietors  of  adjacent  lands  are  tenants  in  common  of  the 
boundary  line ;  and  a  fence  erected  on  the  line  is  a  fixture,  in 
which  they  have  an  undivided  interest,  and  for  the  removal  of 
which  neither  can  maintain   trespass  against  the  other  {Gibson  v. 

Vatighn,  2  Bailey^s  P.,  389).  This  is  the  rule,  unless  there  exist 
some  statute  to  change  it ;  and  where  statutes  do  exist,  they  will 
be  referred  to  in  the  subsequent  part  of  this  work,  treating  upon 
the  law  relating  to  fences.  And  here  the  consideration  of  the 
special  subject  of  boundaries  is  concluded. 


The  Law  of  Boundaries,  Fences  and 
Window    Lights. 


Part   II. 


OF    THE    LAW    OF    FENCES. 


CHAPTER  XXYIII. 

WHAT   CONSTITUTES    A   FENCE NO    OBLIGATION    AT    COMMON    LATT  TO 

MAINTAIN     FENCES HOW    THE      SUBJECT     IS      REGULATED SOME 

POINTS  RELATING  TO  THE  OBLIGATION  TO  REPAIR  FENCES. 

Fences  are  sometimes  referred  to  as  boundaries  for  tlie  division 
of  property,  but  tliej  are  more  properly  treated  in  law  as  guards 
against  intrusion,  and  a  fence  is  usually  understood  to  be  a  line  of 
obstacle  interposed  between  two  portions  of  land,  for  tlie  purpose 
of  preventing  cattle  or  other  domestic  aninuds  from  going  astray, 
or  for  protecting  a  field  or  property  from  unlawful  encroachment. 
A  fence  may  consist  of  almost  any  kind  of  inclosure  or  division  ; 
but  a  hedge,  ditch,  bank,  wall  or  frame  of  wood  will  be  most  com- 
mon]}^ found  to  answer  the  term. 

At  the  common  law,  no  man  is  bound  to  fence  his  lands  against 
the  cattle  of  another,  but  by  that  law  the  owner  of  tlie  beasts  is 
bound  to  restrain  them,  and  is  answerable  for  any  trespass  which 
they  may  commit  upon  the  lands  of  another.  In  other  words,  at 
common  law  the  owner  of  cattle  must  fence  them  in  —  the  neigh- 
bor is  not  bound  to  fence  them  out.  And  by  the  general  rule  it 
".te  immaterial  whether  the  trespassing  cattle  come  in  from  the  high- 
M-ay,  the  laud  of  the  owner  of  the  beasts,  or  through  the  land  of 
a  third  person.  It  is  said  in  an  old  English  authority,  that  every 
man  ought  to  keep  up  his  own  hedges  (2  Roll.,  289) ;  but  it  is  not 
thereby  intended  that  every  man  is  bound  to  raise  any  visible  or 
material  defense  against  the  adjoining  proprietor.  He  may,  if  he 
please,  leave  his  property  open,  and  separated  from  the  land  of 
the  neighboring  owner,  by  nothing  but  the  ideal  invisible  boundary 
which  exists  in  contemplation  of  law  which  bounds  every  man's 
land,  and  is  his  fence  {Sf^cw  v.  Rolvesby,  1  Sall'eld'S  i?.,  335).  This 
is  the  common-law  rule.  The  word  "  close "  is  technical,  and 
signifies  the  interest  in  the  soil,  and  not  a  close  or  inclosui-e  in  the 
common  acceptation  of  the  term. 

But  as  every  man  is  bound  not  lo  trespass  upon  the  land  of 
another,  so  is  he  bound  to  keep  his  beasts  from  trespassing  also, 
"  for   if  by    his  negligent  keeping  they  stray  upon   the  land   of 


342  LAW  OF  FENCES. 

another  (and  much  more  if  he  permits  or  drives  them  on),  and 
they  then  tread  down  his  neighbor's  herbage,  and  spoil  his  corn  or 
his  trees,  this  is  a  trespass,  for  which  the  owner  must  answer  in 
damages,  and  the  hiw  gives  the  party  injured  a  double  remedy  in 
this  case,  by  permitting  him  to  distrain  the  cattle  thus  damage 
feasant,  or  doing  damage,  till  the  owner  shall  make  him  satisfac- 
tion, or  else  by  leaving  hini  to  the  common  remedy  by  action  "  (3 
Black.  Com.,  211).  It  is  perfectly  well  settled  and  understood 
that  by  the  common  law  no  man  was  bound  to  fence  against  the 
cattle  of  others.  The  owner  of  cattle  was  bound  at  his  peril  to 
restrain  them  from  trespassing  upon  the  lands  of  his  neighbor, 
and,  if  he  neglected  to  do  so,  he  was  not  only  precluded  from 
recovering  damages  for  any  injury  which  the  cattle  might  sustain 
by  going  upon  the  lands  of  others,  but  he  was  himself  liable  to 
make  compensation  for  tlie  trespass  committed  by  his  cattle  {Rust 
V.  L(yw,  6  Mass.  i?.,  94  ;  Thayer  v.  Arnold,  4  Jlet.  i?.,  589  ;  Lit- 
tle y.  Lathroj?,  5  Greenl.  B.,  356 ;  Bush  v.  Brainard,  1  Cow.  R., 
78  ;  Holladay  v.  Marsh,  3  Wend.  R.,  142).  In  the  case  of  Rust 
V.  Low,  Chief  Justice  Parsons  laid  down  the  rule :  "  At  common 
law,  the  tenant  of  a  close  was  not  obliged  to  fence  against  an 
adjoining  close,  unless  by  force  of  prescription  ;  but  he  was  at  his 
peril  to  keep  his  cattle  on  his  own  close,  and  to  prevent  them 
from  escaping ;  and  if  they  escaped,  they  might  be  taken  on  what- 
ever land  the)"  might  be  found  damage  feasant,  or  the  owner  was 
liable  to  an  action  of  trespass  by  the  party  injured."  And  this 
rule  of  the  common  law  applied  as  well  to  division  fences  as  to 
those  upon  the  public  highway.  Where  tliere  was  no  agreement 
or  prescription,  there  was  no  mode  by  which  one  tenant  could 
compel  the  tenant  of  an  adjoining  close  to  make  division  fences  ; 
and  even  where  there  was  an  agreement  or  prescription,  the 
remedy  was  by  action  upon  such  agreement  or  prescription.  It 
was  said  by  a  very  ancient  English  author,  that  if  a  man  seised  of 
200  acres  enfeoff  another  of  fifty  acres,  the  feoffor  is  bound  to 
inclose  them  and  keep  his  cattle  within  the  fifty  acres,  and  so  is 
the  lord  of  the  residue  {Dyer''s  Rep.,  372).  There  can  be  no 
doubt,  however,  that  neither  would  be  bound  to  inclose  for  the 
benefit  of  the  other ;  it  is  certainly  the  duty  of  every  owner  to 
prevent  his  cattle  from  trespassing  on  the  land  of  his  neighbor, 
but  the  courts  of  England  have  repeatedly  held  that  no  one  can 
be  bound  to  maintain  a  fence  between  his  own  land  and  the  land 


FEXCES  AT  COMMON  LAW.  343 

adjoining  except  by  agreement  or  prescription  (  Vide  Fltzherbert'' s 
Natura  Brevium,  128,  note i  Churchill  v.  Evans.,  1  Taunton'' s 
Ii.,  529).  Said,  Baylev,  J.,  in  a  leading  case  in  the  English  Coui-t 
uf  King's  Bench:  "The  right  to  have  a  fence  ]-epaired  by  the 
adjoining  proprietor  is  in  the  nature  of  a  gi-ant  of  a  distinct  ease- 
ment affecting  the  land  of  the  grantor"  [Boyle  v.  Tavdyn.,  6 
Ham.  (j&  Cres.  i?.,  329,  339).  And  it  is  said  by  an  elementary 
writer  of  England,  that  "  there  may  be  a  spurious  kind  of  ease- 
ment obliging  an  owner  of  land  to  keep  his  fences  in  a  state  of 
repair,  not  only  sufficiently  to  resti-ain  his  own  cattle  within 
bounds,  but  also  those  of  his  neighbor"  {Gale  on  Easements,  4:th 
ed.,  460;  and  vide  Star  v.  Rokeshy,  1  Salkeld's  7?.,  335). 

It  is  very  cleai-,  therefore,  that  the  obligation  to  maintain  a  fence 
is  founded  upon  a  statute,  agreement  or  prescription.  In  the 
American  States  the  erection  and  repair  of  boundary  and  division 
fences  is  generally  regulated  by  statute  ;  and  most  of  the  questions 
which  have  arisen  here  upon  the  subject  have  arisen  under  the 
various  statutes  which  have  been  enacted  in  respect  to  it.  The 
statutory  policy  of  the  several  States  will  be  referred  to  and  fully 
explained  in  subsequent  chapters.  It  may  be  affirmed  here,  how- 
ever, that  it  is  perfectly  eompcterit  for  the  Legislatures  of  the 
several  States  to  pass  laws  regulating  the  subject  of  boundary  and 
division  fences,  whatever  may  be  said  as  to  the  constitutional  right 
to  require  the  maintaining  offences  along  public  highways  (Vide 
Wills  V.  Walters,  5  Bush's  It.,  351).  It  maybe  further  stated 
as  a  rule  that,  inasmuch  as  the  common  law  docs  not  require  par- 
ties to  maintain  fences,  statutes  regulating  the  subject  are  reme- 
dial, and  intended  to  provide  against  existing  defects  in  the  com- 
mon law;  and  they  must,  therefere,  receive  a  liberal  or  ctunpre- 
hensive  construction,  both  as  to  the  extent  of  the  change  and  the 
means  of  carrying  them  into  effect,  as  a  strict  or  close  construction 
of  a  remedial  statute  is  less  likely  to  correspond  with  the  probable 
intention  of  the  Ley-islature  where  the  lano^uao-e  of  the  statute  is 
such  as  to  leave  the  actual  intention  in  relation  to  the  particular 
case  a  matter  of  doul)t.  So  in  those  cases,  where  the  statute  cre- 
ates a  Tiew  right  for  the  party,  if  the  statute  should  fail  to  pre- 
scribe a  remedy  for  the  party  aggrieved  by  the  violation  of  such 
statutory  right,  courts,  upon  the  principle  of  a  liberal  or  compre- 
hensive interpretation  of  the  statute,  will  presume  that  it  was  the 
intention  of  the   Legislature  to   give   to  the  party  aggrieved  a 


344  LAW   OF  FESCES. 

remedy  by  a  common-law  action  for  the  violation  of  his  statutory 
right;  and  he  will  be  permitted  to  recover  in  an  appi-opriate 
action  founded  upon  the  statute.  But  where  the  statute,  creating 
this  new  right,  prescribes  the  remedy  for  a  violation  of  that  right, 
the  party  aggrieved  by  such  violation  of  the  right  must  pursue 
the  remedy  given  t(^  him  by  the  statute  and  cannot  resort  to  any 
other.  These  principles  are  elementary  and  need  not  be  fortified 
by  quotation  of  authorities;  but  it  is  often  necessary  to  apply 
them  to  cases  arising  under  statutes  relating  to  the  erection  and 
repairing  of  fences. 

Inde]iendent  of  any  statute,  parties  may  obligate  themselves  by 
contract  to  maintain  boundai'y  and  division  fences ;  but  in  order 
that  the  agreement  be  binding  it  must  ordinarily  be  in  wi'iting, 
and  have  the  effect  of  a  grant  {Ilewlins  v.  >S/iij>j)a?ny  5  Barn.  <j& 
Cres.  Ji.,  221).  And  in  the  absence  of  actual  proof  of  an  agree- 
ment, it  has  been  held  that  the  right  to  have  fences  repaired  must 
be  founded  upon  an  adverse  enjoyment  for  the  time  liniited  by 
the  statute,  from  which  a  grant  will  be  presumed  {Vide  1  Ktmfs 
Com.,  5S3;  Fitzherlert,  N.  B.,  127,  12S,  in  notis).  A  covenant 
to  maintain  a  partition  fence  between  the  land  granted  and  other 
land  of  the  grantor  runs  with  the  land,  and  binds  the  covenantor, 
his  heirs  and  assigns  {Potter  v.  l*(irnj^  7  Weeliij  Beporter,  182; 
Westerii  v.  McDerniott,  2  Laiv  Iiev.,  Ch.  Ajq).,  72  ;  -6'.  6'.,  1  Law 
I2ev.,  Eq.,  400).  And  it  has  been  held  by  the  Supreme  Court  of 
the  State  of  New  York  that  a  covenant  to  keep  up  a  i>artition 
fence,  which  imposes  a  ditierent  liability  from  that  pi'ovided  by 
tlie  statute  relating  to  "division  fences,"  is  a  covenant  runninir 
■with  the  land,  and  an  incund^ranco,  within  the  meaning  of  a  cove- 
nant to  convey  tree  «>f  all  incumbrances.  And  it  was  also  held, 
in  the  sanie  case,  that  where  the  owner  of  land  agrees  with  a  rail- 
road company  to  build  and  forever  maintain  good  and  suthcient 
fences  on  both  sides  of  a  raib'oad  thi'ongh  said  land,  and  releases 
the  I'oad  from  all  claim  for  damages  in  consequence  of  its  neglect 
in  not  having  said  fences  built  previous  to  that  date,  such  is  a 
covenant  wliich  runs  with  the  land,  and  is  within  the  covenant  to 
convey  free  from  all  incumbrances  {Blain  v.  Taylor,  10  Ahh.  Pr. 
P.,  228;  and  ride  B ronton  v.  Coffin,  108  JIass.  P.,  175;  also  2 
IliJliard's  Real  Property,  302). 

Ileference  has  been  made  to  the  ju-esumption  arising  from  the 
enjoyment  of  repairs  to  a  boundary  fence.     In  the  case  of  rights 


FENCES  AT  COMMON  LAW.  845 

of  wii}'  and  most  other  easements,  the  original  enjoj'ment  cannot 
be  accounted  for  unless  a  grant  has  been  made;  and  therefore  it 
is  that,  from  long  enjoyments,  such  grants  are  presumed.  But  in 
the  case  of  the  enjoyment  of  repairs  made  to  a  boundary  fence  by 
the  adjoining  owner  the  case  is  different;  for  the  original  enjoy- 
ment was  consistent  with  the  fact  o'i  there  having  been  no  grant, 
and  with  the  repairs  having  been  made  by  the  party  charged  fur 
his  own  benefit,  and  in  pursuance  of  the  obligation  wiiich  the  law 
imposes  upon  every  man  to  keep  his  cattle  from  trespassing  on  his 
neighbor's  property  {Doe  dem.  Fenwich  v.  Reed,  5  Barn,  dc  Aid., 
^.^232,  237). 

It  is  well  settled,  however,  that  an  obligation  to  maintain  a 
partition  fence  may  exist  by  prescription.  This  is  to  be  inferred 
from  some  authorities  already  referred  to;  but  the  doctrine  has 
been  frequently  affirmatively  held.  In  an  early  case  before  the 
Supreme  Judicial  Court  of  Massachusetts  the  defendant  was  sued 
for  damage  done  by  his  cattle  escaping  through  a  defective  line 
fence;  it  was  held  that  the  owner  of  the  cattle  doincr  dama<>-e  in 
such  case  might  show  that  the  pai'ty  complaining  was  bound  by 
prescription  to  maintain  the  fence,  and  that  he  might  prove  it  by 
ancient  usage,  although  it  was  held  that  the  prescription  sliould  be 
pleaded  {Rust  v.  Loio,  6  Mass.  R.,  90).  And  in  a  later  case, 
before  the  same  court,  it  was  declared  that,  where  a  party  is  not 
bound  hy  p'^'escrijjtimi,  agreement,  or  assignment  offence-viewers, 
to  maintain  a  fence  between  his  land  and  that  of  the  adjoining 
owner,  he  may  sustain  an  action  of  trespass,  ^war^  clausum  /regit, 
against  the  adjoining  owner,  whose  cattle  escape  into  his  land. 
And  it  was  said  that  the  common  law  in  this  respect  was  not 
altered  by  the  statutes  of  the  commonwealth  {Thayer  v.  Arnold, 
4  Jlet.  R.,  589). 

At  an  early  di,iy  in  tlie  State  of  South  Carolina  it  appeared  that 
the  plaintiff  had  erected  a  partition  fence  on  the  line  dividing  his 
land  from  that  of  an  adjoining  owner,  after  requesting  the  said 
proprietor  to  join  in  the  building  thereof,  which  he  refused  to  do, 
in  the  city  of  Charleston  ;  and  afterward,  on  the  refusal  of  the 
owner  of  the  same  land  adjoining  to  pay  any  part  of  the  expense 
thereof,  brought  assumpsit  for  a  contribution,  or  a  moiety  of  the 
expense,  and  gave  in  evidence  a  local  custom  of  the  place,  entitling 
the  builder  of  a  party  wall  or  fence  to  recover  half  the  expense  of 
erecting  the  same,  and  had  a  verdict.  On  appeal,  the  court  abovo 
44 


34G  i-l'I'   OF  FEXCES. 

lield  that  tlie  custom  was  a  good  one,  and  affirmed  the  verdict 
(  Walker  v.  CMchester^  2  Brevard's  7?.,  67). 

The  Supreme  Court  of  Alabama,  a  few  years  since,  declared 
that,  by  the  common  law,  a  tenant  of  a  close  is  not  bound  to  fence 
against  an  adjoining  close,  unless  by  force  of  prescription- ;  and 
that,  where  no  prescription  or  agreement  exists,  the  legal  obliga- 
tion of  the  tenants  of  adjoining  lands  to  make  and  maintain  par 
tition  fences  depends  entirely  upon  statutory  provisions  {Moore  v. 
Levert,  24  Ala.  /?.,  310).  And  to  the  same  effect  is  a  decision  of 
the  highest  court  of  Maryland,  by  which  it  was  held  that,  in  a 
county  where  there  is  no  act  of  the  legislature  regulating  parti- 
tion fences,  the  principles  of  the  common  law  will  prevail,  and 
that  the  tenant  of  a  close  is  not  obliged  to  fence  against  an  adjoin- 
ing close,  unless  by  force  of  prescription,  but  he  is  bound  at  his 
peril  to  keep  liis  cattle  on  his  own  close  {Richardson  v.  Miller,  11 
Md.  E.,  340). 

Prescription  to  fence  is  allowed  at  common  law,  as  resulting 
from  an  original  grant  or  agreement,  the  evidence  of  which  is 
lost  by  lapse  of  time;  or  the  obligation  by  prescription  may  arise 
from  a  usage  of  the  tenants  of  adjoining  closes,  and  those  who 
liave  held  the  same  closes  before  them,  to  repair  certain  propor- 
tions thereof,  respectively,  fur  a  time  whereof  the  memory  of  man 
runneth  not  to  the  contrary.  It  was  declared  l)y  Parsons,  Ch.  J., 
in  the  decision  of  a  case  in  the  Supreme  Judicial  Couit  of  Massa- 
chusetts, over  sixty  years  ago,  that  this  country  had  then  "  Ijeen 
settled  long  enough  to  allow  of  the  time  necessary  to  prove  a  pre- 
scription, and  ancient  assignments  by  fence-viewers,  made  under 
the  late  provincial  laws ;  and  also  ancient  agreements  made  by  the 
parties  may  have  once  existed,  and  be  now  lost  by  the  lapse  of 
time"  {Rust  v.  Lov:,  6  21ass.  R.,  90,  97j. 

If  one  of  two  proprietors  of  adjoining  lands  maintains  a  fence 
for  the  benefit  in  whole  or  in  part  of  the  adjuiiiing  proprietoi-,  for 
a  period  of  time  sufficient  to  establish  a  prescription,  the  law  will 
presume  a  grant  or  covenant  by  which  he  became  legally  obliged 
to  do  so.  But,  notwithstanding  the  rule  that  the  obligation  to 
maintain  certain  portions  of  a  line  fence  may  be  established  by 
prescription,  this  obligation  continues  no  longer  than  while  they 
are  coterminous  possessors;  and  if  there  be  a  change  in  extent  by 
which  one  of  the  adjoining  proprietors  borders  on  the  other,  tlie 
fence-viewers  may  be  called  upon  to  settle  the  proportion  of  fence 


FENCES  AT  COMMON  LAW.  347 

to  be  built  by  eacli  owner  {Adams  v.  Yan  Alstyne,  35   Bail).  7?., 
9  ;  S.  C.  affirmed,  25  ]S^.  Y.  R.,  232). 

Tlie  obligation  to  maintain  a  fence  by  an  agreement  and  that 
by  force  of  a  prescription  are  entirely  cognate  or  of  the  same 
nature.  Indeed,  prescription,  as  recognized  in  law,  is  a  title  or 
right  acquired  by  possession ;  so  that  the  right  of  a  party  to  have 
a  portion  of  the  division  fence  between  himself  and  his  neighbor 
maintained  by  the  adjoining  owner,  \>^'  jpresanption^  is  predicated 
npon  the  fact,  so  to  speak,  that  he  has  enjoyed  the  benefit  of  such 
fence  for  a  period  requisite  to  I'ipen  an  adverse  possession  of  any 
easement  into  a  title.  It  is  the  general  rule  of  law  that  ho  who 
lias  been  for  a  long  time  in  possession  of  a  thing  shall  be  regarded 
as  the  owner  of  it,  because  meii  are  naturally  careful  not  to  give 
up  whai  belongs  to  them,  or  long  continue  to  do  that  which  is  a 
burden  to  them  unless  they  are  under  some  legal  obligation  to  do 
it.  On  this  principle  the  right  to  enjoy  the  repairs  of  a  boundary 
fence  by  prescription  is  predicated,  although  the  period  which 
matures  this  right  is  different  in  different  States.  The  doctrine, 
however,  is  recognized  in  all  of  the  American  States,  and  in 
England. 

The  general  rule  then  is  that,  at  the  common  law,  a  party  is 
not,  from  the  mere  circumstance  of  having  a  neighbor,  compelled 
to  raise  any  defense  against  the  contiguous  property.  He  may 
continue  to  preserve  the  "  ideal,  invisible  boundary,"  whicli  the 
law  recognizes  as  separating  the  close  of  one  man  from  that  of 
another,  without  any  visible  or  tangible  fence.  A  man  is  only 
bound  to  take  care  that  his  cattle  do  not  wander  from  his  own 
land  and  trespass  upon  the  lands  of  others. 

I3ut  the  inconvenient  consequences  of  this  exposure  give  at 
once  the  reason  why  fences  are  of  value,  and  the  right  to  create 
and  keep  them  in  repair  comes  in  question  as  soon  as  the  mischief, 
M'hether  it  be  by  the  intrusion  of  cattle  or  otherwise,  has  occurred. 
Because  the  law,  notwithstanding  the  general  rule  that  a  party 
shall  not  be  held  to  fence  his  land  for  the  benefit  of  another,  inter- 
feres immediately  uj)on  the  accession  of  the  injury,  and  accords 
a  remedy  according  to  the  event.  Thus  it  became  the  interest  of 
men,  in  the  first  instance,  to  guard  against  mutual  encroachment 
and  incursion,  and  this  was  effected  through  the  medium  of  a 
fenced  boundary.  In  view  of  the  rule  stated  and  the  consequen- 
ces of  a  strict  adherence  to  it,  it  might   be   supposed  that   the 


348  ^'ITr    OF  FENCES. 

advantages  of  a  fence  are  so  mutual,  there  would  be  found  a 
double  defense  at  the  verge  of  each  inclosure.  This,  however,  so 
far  from  being  the  case  universally,  where  only  the  common  law 
prevails,  is  even  very  rare,  the  boundaries  of  property  being 
usually  conli*ned  within  one  defense.  And  it  may  be  added,  as  a 
general  rule,  that  the  repair  of  the  defense  ensues  upon  the  owner- 
ship thereof.  But  this  condition  of  things  must  be  attributed  to 
agreement  between  the  respective  parties.  And  agreement  is 
either  developed  by  deed,  or  presumed  where  no  deed  exists.  In 
the  one  case,  the  instrument  sufficiently  manifests  the  intention 
of  the  parties ;  in  the  other  (and  the  majority  of  instances  is  of  this 
nature),  the  obligation  to  fence,  in  the  absence  of  statutory  enact- 
ment, arises  by  prescription.  The  right  to  repair  fences  has  some- 
times been  the  subject  of  litigation  where  there  has  existed  an 
express  covenant,  but  it  has  been  \LlQ.t^  especially  so  where  the  lia- 
bility has  rested  upon  prescription. 

But  property  of  adjoining  closes  may  become  severed,  and  again, 
after  the  disunion,  they  may  be  once  more  centered  in  the  same 
owner.  In  the  first  case,  where  no  inclosure  exists,  it  has  been 
debated  whether  the  seller  cr  the  buyer  should  maintain  the  fence, 
in  the  absence,  of  course,  of  an  express  stipulation  upon  the  sub- 
ject. If  there  be  an  inclosure  already,  unless  there  be  an  agree- 
ment to  the  contrary,  in  case  of  hedges,  the  person  on  whose  side 
the  hedge  is,  and  the  ditch  is  not,  is  under  obligation  to  repair. 
In  the  second  case,  where  the  closes  have  returned  to  the  same 
owner,  ^»nd  thej'  are  once  more  divided,  it  has  been  considered 
that  the  usual  principle  of  extinguishment  upon  unity  of  posses- 
sion governs  the  transaction;  and,  moreover,  that  the  considera- 
tion does  not  revive  after  the  severance.  This  was  so  decided  in 
England  hundreds  of  years  ago  {Polus  v.  Tlenstoclc,  1  Ventris'  B., 
97) ;  and  the  English  Court  of  King's  Bench  has  reiterated  the 
doctrine  within  the  last  fifty  years,  in  a  case  hereinbefore  referred 
to,  in  which  Bayley,  J.,  said:  "Even  where  adjoining  lands, 
which  have  once  belonged  to  different  persons,  one  of  whom  was 
bound  to  repair  the  fences  between  the  tw^o,  afterwards  became 
the  property  of  the  same  person,  the  pre-existing  obligation  to 
repair  the  fences  is  destroyed  by  the  unity  of  ownership.  And 
where  the  person  who  has  so  become  the  owner  of  the  entirety 
afterM'ards  parts  with  one  of  the  two  closes,  the  obligation  to 
repair  the  fences  will  not  revive,  unless  express  words  be  intro- 


FEXCES  AT  COMMON  LAW.  349 

duced  into  the  deed  of  conveyance  for  that  purpose"  {Boyle  \. 
TamJyn,  6  Barn,  cfe  Ores.  R.,  329,  337). 

A  man  is  not  bound  to  fence  against  his  own  land  ;  and  if  one 
bound  to  fence  against  the  land  of  another  purchase  that  land,  he 
is  not  bound  to  maintain  the  fences  any  longer.  So,  if  A.  be 
bound  to  inclose  against  J3.,  who  has  twenty  acres  adjoining,  and 
A.  purchases  one  acre  contiguously  adjacent  to  the  inclosure,  A. 
will  not  be  compelled  to  inclose  against  that  one  acre.  It  follows, 
therefore,  that  the  duty  of  fencing  becomes  extinguished  by  unity 
of  ownership;  and,  further,  that  this  duty  is  incapable  of  revivor 
in  the  event  of  tlie  two  closes  again  becoming  vested  in  different 
owners;  for  though  things  of  necessity  shall  revive,  as  a  way  to 
market  or  church,  yet  in  the  ease  of  easements  not  of  necessity  the 
rule  is  otherwise  {Poliis  v.  Ilenstocl',  1  Ventris'  R.,  97).  But  it 
must  be  noticed  that  unity  of  possession  suspends  merely  the 
obligation  to  repair  the  fence  between  two  properties ;  to  destroy 
the  prescription  there  must  be  unity  of  ownership;  and,  furthei', 
the  party  must  have  an  equally  perdurable  estate  in  both  the  tene- 
r/icnts  {Canharn  v.  Fisk,  2  Crompton  d;  Jervis'  R.,  126). 

Alderson,  J.,  observed,  in  a  case  before  the  Englisli  Court  of 
Exchequer :  "  If  I  am  seised  of  freehold  premises,  and  possessed 
of  leasehold  premises  adjoining,  and  there  has  formerly  been  an 
easement  enjoyed  by  the  occupiers  of  the  one  as  against  the  occu- 
piers of  the  other,  while  the  premises  are  in  my  hands  the  ease- 
ment is  necessaril}^  suspended ;  but  it  is  not  extinguished,  because 
there  is  no  unity  of  seisin;  and  if  I  part  with  the  premises  the 
right,  not  being  extinguished,  will  revive"  {Thomas  v.  Thomas,  2 
Crom2)t.,  Meeson  cfc  Roscoe's  R.,  41).  And  in  an  early  case  before 
the  English  Court  of  King's  Bench  it  appeared  that  King  Henry 
YIII  was  seised  of  the  tenements  in  Hermitage  in  fee  simple  abso- 
lute j?W(3  coroncB  /  that  the  occupiers  of  those  lands  had  a  prescri|> 
tive  right  to  pasture  beasts  on  Hermitage  common,  which  was  part 
of  the  duchy  of  Cornwall ;  and  that,  for  want  of  a  Duke  of  Corn 
wall.  Hermitage  common  came  into  the  possession  of  Henry  VIII, 
so  that  he  held  the  lands  of  Hermitage  and  Hermitage  common 
together;  it  having  been  contended  that  the  right  of  common 
was  extinct  by  unity  of  ownership.  Holt,  Ch.  J.,  said  that  this 
was  not  such  a  unity  of  ownership  as  would  destroy  the  prescrip- 
tion  ;  "for,  though  King  Henry  VIII  had  an  estate  in  fee  in  the 
lands  to  which   the  counnon  of  jiasture  appertained,  and  also  in 


350  LAW   OF  FENCES. 

Hermitage  common,  yet  he  had  not  as  perdurable  an  estate  ii/  one 
as  he  had  in  the  other ;  for  the  quality  of  the  estates  differed, 
because  Hermitage  common  was  part  of  the  duchy  of  Cornwall, 
and  the  king  had  in  it  only  a  fee  determinable  on  the  birth  of  a 
Duke  of  Cornwall,  which  is  a  lease  fee ;  but  in  the  tenements  in 
Hermitage  he  had  a  pure  fee  simple  and  interminable,  and,  there- 
fore, a  unity  of  such  estates  worked  no  extinguishment;  for 
where  a  unity  of  ownership  extinguishes  a  prescriptive  right, 
the  two  estates  must  be  equal  in  duration,  quality  and  all  other 
circumstances  of  right"  {I2ex  v.  The  Inhabitants  of  Hermitage, 
Carthew's  R.,  239,  241). 

These  observations  as  to  the  suspension  and  revivor  of  pre- 
scriptive rights  from  mere  unity  of  possession,  without  unity  of 
seisin,  apply  only  where  the  prescriptive  right  has  already  been 
gained.  If  the  period  allowed  by  the  law  for  gaining  the  pre- 
scriptive right  is  not  completed  when  tlie  unity  of  possession 
occurs,  it  will  be  necessary  to  commence  reckoning  the  prescrijD- 
tion  afresh  when  tlie  unity  of  possession  is  ended,  for  while  it 
lasted  the  boundary  fences  could  not  have  been  maintained  by 
the  occupier  by  virtue  of  any  legal  obligation ;  for  it  has  been 
Bhown  that  no  man  is  bound  to  fence  one  part  of  his  property 
from  another  (  Vide  Clayton  v.  Corby,  2  Gale  cfc  Davidson'' s  B., 
174). 

It  would  seem,  therefore,  to  follow  as  a  natural  consequence,  if 
an  obligation  to  maintain  fences  is  destroyed  by  unity  of  owner- 
ship, and  will  not  revive  unless  express  words  are  introduced  into 
the  conveyance,  that  no  agreement  as  to  fencing  can  be  implied  on 
the  part  of  either  an  ordinary  vendor  or  vendee,  upon  a  sale  and 
division  of  lands  between  the  owners  and  occupiers  of  which  no 
obligation  to  repair  fences  has  ever  existed  ;  and  some  of  the  cases 
herein  considered  substantially  hold  to  this  doctrine.  But  the 
obligation  to  erect  and  repair  fences  in  this  country  more  gene- 
rally rests  upon  statutory  regulation,  and  the  principal  litigation 
here  arises  under  the  various  legislative  enactments  relating  to  the 
subject ;  and  this  policy  will  be  particularly  considered  in  subse 
quent  chapters,  where  some  of  the  points  here  stated  will  be  further 
illustrated. 


TUE  LOCATION  OF  FENCES  S51 


CHAPTER  XXIX. 

RTTLES  IN  RESPECT  TO  THE  ERECTION  OF  FENCES THE    OWNERSHIP  OF 

FENCES  AND  OTHER  INCIDENTS CONSEQUENCE   OF  THE  NEGLECT  TO 

KEEP     FENCES     IN     REPAIR WHO     MAY     TAKE     ADVANTAGE     OF    A 

DEFECTIVE   FENCE. 

In  tlie  absence  of  any  agreement,  statute  or  prescription,  a  per- 
son is  obliged  to  erect  his  fence  upon  his  own  prerxiises,  in  ease  h» 
desires  to  inclose  them.  The  rule  respecting  ditching  laid  down 
by  Lawrence,  J.,  in  an  early  English  ease,  clearly  settles  the  law 
upon  the  subject.  The  learned  judge  said  :  "  The  rule  is  this  : 
No  man  making  a  ditch  can  cut  into  his  neighbor's  soil,  but  usu- 
ally he  cuts  it  to  the  very  extremity  of  his  own  land ;  he  is,  of 
course,  bound  to  throw  the  soil  which  he  digs  out  upon  his  own 
land,  and  often,  if  he  likes,  he  plants  a  hedge  on  the  top  of  it ; 
therefore,  if  he  afterward  cuts  beyond  the  edge  of  the  ditch,  which 
is  the  extremity  of  his  land,  he  cuts  into  his  neighbor's  land,  and 
is  a  ti'espasser.  Ko  rule  about  four  feet,  and  eight  feet,  has  any- 
thing to  do  with  it.  He  may  cut  the  ditch  as  much  wider  as  he 
will,  if  he  enlarges  ir  into  his  own  land"  {Vowles  v.  Miller,  3 
Taunt.  R.,  138).  Care  must  be  taken,  however,  by  the  person 
making  the  ditch,  that  he  does  not  dig  so  deep,  nor  in  such  a  man- 
ner, as  to  let  down  his  neighbor's  soil,  otherwise  he  will  be  liable 
to  the  party  aggrieved  for  the  damages  which  he  may  sustain  by 
reason  thereof  (  Wyatt  v.  Harrison,  3  Barn,  cfe  Adolpli.  R.,  871). 
Proof  of  the  ancient  width  of  the  ditch  is  held  lo  be  evidence 
that  the  boundary  line  does  not  extend  be3^ond  the  outer  edge 
thereof;  consequently,  where  two  estates  are  separated  by  a  hedge 
and  single  ditch,  the  presumption  is,  in  default  of  evidence  to  the 
contrary,  that  both  ditch  and  hedge  belong  to  the  owner  of  the 
land  on  which  the  hedge  is  planted  (  Vowles  v.  Miller,  supra ; 
Strang  v.  Stewart,  4  Sess.  Cases,  II.  of  Lords,  5).  If  there 
are  two  ditches,  one  on  e<ich  side  of  an  old  hedge,  or  if  a 
baTik  be  raised  on  both  sides  of  a  trench,  or  if  there  be  an  old 
bank  without  any  apparent  trench  on  either  side,  then  the  owner- 
ship of  the  hedge,  ditch  or  bank  may  be  ascertained  by  proving 
acts  of  ownership ;  and  consequently,  proof  of  the  exercise  of 
ownership,  such  as   cleansing   the   ditch,  clipping   the   hedge,  or 


352  L'-^  ^''   ^^'^  FEXCES. 

repairing  tlio  bank,  \s,  jyr  una  facie  evidence  of  tlie  property  in  ths 
hedge,  ditch  or  bank,  as  the  ease  may  be,  being  in  tlie  party  exer- 
cising such  acts.  If  tlie  proprietors  on  each  side  of  the  bouiKbxry 
can  prove  acts  of  ownership,  this  would  be  evidence  of  a  tenancy 
in  common  in  the  liedge,  ditch  or  bank ;  unless  it  was  positively 
shown  what  quantity  of  land  each  propi-ietor  had  contributed 
towards  the  formation  of  the  ditch  or  bank  dividing  the  proper- 
ties ;  in  which  case  the  original  boundary  would  not  be  disturbed, 
but  each  proprietor  would  continue  to  hold  his  share  in  sevei-alty 
{yide  Gray  v.  West,  2  Selwyn's  N.  P.,  1297;  Searhy  v.  Totten- 
ham Hallway  Company,  5  L.  R.  ^^.,409  ;  Warne  v.  Southioorth, 
6  Co7i7i.  li.,  471;  Woolryeh  on  Fences,  283).  Holroyd,  J.,  in  a 
case  decided  by  the  English  Court  of  King's  Bench,  sa'd  :  "  Gener- 
ally speaking,  where  an  inclosure  is  made,  the  pai'ty  making  it 
erects  his  baidc  and  digs  his  ditch  on  his  own  ground,  on  tlie  out- 
side of  the  bank.  The  land  which  constitutes  the  ditch,  in  point 
of  law,  is  part  of  the  close,  though  it  be  on  the  outside  of  the 
bank.  And  if  something  further  is  done  for  the  party's  own  con- 
venience, when  that  whicii  constitutes  the  fence  is  dug  out  from 
his  land,  as,  for  instance,  if  a  small  portion  of  uninclosed  land  near 
a  public  or  private  way  is  left  out  of  the  inclosure  to  protect  and 
secure  the  occupation  of  that  part  of  the  land  which  is  inclosed, 
that,  in  point  of  law,  is  a  part  of  the  close  on  which  the  inclosure 
is  made''  {Doe  v.  Pearsey,  7  Barn.  i&  Cres.,  li.,  307;  vide  Noye 
V.  Reed,  1  Man.  &  Ryl.  R.,  65). 

The  principles  which  apply  in  cases  of  party  walls,  are  also 
adopted  in  cases  offences  of  other  materials.  It  is  well  settled  by 
authority,  that  the  property  in  a  party  wall  erected  at  the  joint 
expense  of  two  proprietors  ensues  the  property  of  the  land  on 
which  it  stands,  where  the  quantity  of  the  land  contributed  by 
each  party  is  known.  There  is  no  transfer  of  property,  but  the 
parties  are  severally  owners  of  their  respective  lands  as  before ; 
and  each,  for  any  injury  done  to  the  portion  of  the  wall  standing 
on  his  own  soil,  has  the  ordinary  remedy  {Matts  v.  Ilaiohlns,  5 
Taunt.  R.,  20).  But  where  it  is  not  known  under  what  circum- 
stances the  wall  was  built,  the  presumption  is  that  it  belongs  to 
the  two  proprietors  as  tenants  in  common.  Said  Bayley,  J.,  in  an 
early  case  in  the  English  Court  of  King's  Bench :  "  Where  the 
builder  of  two  houses  grants  off  one,  it  is  more  reasonable  to  pre- 
sume that  he  grants   the  whole  wall  in   undivided  moieties,  than 


RULES  RESPECTING   PARTY   WALLS.  §53 

that  he  should  leave  to  either  party  the  power  of  cutting  the  wall 
in  half.  That  would  be  the  case  if  the  houses  were  built  by  one 
and  the  same  person.  If  two  persons  built  at  the  same  time,  the 
probability  is  that  they  would  take  a  conveyance  of  an  undivided 
moiety  of  the  ground  on  which  the  wall  was  to  be  erected,  in  order 
that  the  property  might  afterward  be  kept  in  the  same  state  " 
Wiltshire  v.  Sidford,  1  Man.  d;  Rxjl.  E.,  403  ;  aS'.  C,  8  Barn,  cfi 
Cres.  12.,  259 ;  JIutGhinson  v.  Mains,  1  Alcock  &  Napier's  R., 
155). 

It  has  been  before  stated  that  ownership  of  a  hedge,  bank  or 
wall  may  be  proved  by  acts  of  ownership  ;  and,  therefore,  com- 
mon user  of  a  wall  by  two  proprietors  \q prima  facie  evidence  of 
its  being  their  common  property  {Cor'biti  v.  Porter,  8  Barv.  c5 
Cres.  R.,  257).  If  a  wall  is  not  common  property,  but  one-half 
of  it  belongs  exclusively  to  one  proprietor,  and  the  other  half  of 
it  exclusively  to  another,  either  proprietor  is  justified  in  pulling- 
down  the  portion  of  the  wall  standing  on  his  own  land,  although 
sufficient  support  may  not  be  left  for  the  portion  which  belongs 
to  his  neighbor  {Wigford  v.  Gill,  Cro.  Eliz.,  269;  Wiltshire  v. 
Sidford,  supra).  It  was  expressly  held  in  the  Irish  connnon-Iaw 
courts,  that  a  custom  in  the  city  of  Dublin,  that  a  person  taking 
down  a  house  for  the  purpose  of  rebuilding  is  bound  to  close  up 
and  protect  the  party  walls  of  an  adjoining  house,  was  unreason- 
able and  void  {Keinpston  v.  Butler,  12  Irish  C.  L.  R.,  516). 

In  cases  where  there  are  circumstances  from  which  a  grant  of 
an  easement  conferring  a  right  of  support  may  be  implied,  the 
party  would  not  be  justified  in  pulling  down  his  own  wall,  pro- 
vided the  act  undermines  the  adjoining  foundations.  The  mere 
circumstance  that  two  walls  are  in  juxtaposition,  however,  will 
not  give  the  right  of  support,  nor  will  this  circumstance  render  it 
necessary  that  a  person  pulling  down  one  wall  should  give  notice 
of  his  intention  to  do  so  to  the  owner  of  the  adjoining  wall  {Troioer 
V.  Chadwick,  8  Scott's  R.,  1 ;  S.  C,  6  B.  N.  C,  1).  There  must 
be  special  circumstances  giving  the  right  of  support,  as  for  instance 
where  two  walls  are  so  built  that  one  cannot  stand  without  the 
support  of  the  other,  and  both  have  been  at  one  time  in  the  hands 
of  the  same  owner ;  the  legal  presumption  in  this  case  being  that,, 
when  the  owner  granted  away  the  house  to  which  either  of  the 
walls  is  attached,  he  reserved  to  himself  a  right  of  support  for  his 
own  house  adjoining,  and  therefore  conferred  on  his  grantee  a 
45 


§54  LAW  OF  FENCES. 

Bimilar  right  for  the  bouse  granted  to  him,  as  an  easement  of 
necessity  ( Vide  Richards  v.  Bose,  9  Exch.  R.,  218 ;  Browti  v. 
Windsor,  1  Cronipt.  (&  Jerv.  R.,  20  ;  Peyton  v.  Mayor  of  London., 
9  Barn.  &  Ores,  i?.,  725  ;  Massey  v.  Goyder,  4  Car.  <&  Payne^s 
E.,  161 ;  Menchin  v.  Black.,  19  Com.  Bench  R.,  N.  S.,  190  ;  Svf- 
field  V.  Brown,  10  Jur.,  N.  S.,  114;  S.  C,  33  Z.  J.  Ch.,  249; 
Pyer  v.  Carter,  1  Hurls.  <&  Nor.  R.,  916).  Doubts  have  been 
expressed  whether  a  right  of  support  can  be  gained  for  one 
house  from  another  by  mere  lapse  of  time,  because  there  is 
great  difficulty  in  implying  a  grant  of  an  easement  in  cases  where 
its  enjoyment  has  not  been  open  and  as  of  right  (  Vide  Brown 
V.  ^Y^7ldsor,  supra).  This  difficulty  is  not  altogether  got  rid 
of  by  the  fact  that  the  house  for  which  support  is  claimed  has 
been  visibly  out  of  the  perpendicular  for  many  years,  because  the 
amount  of  support  required  can  be  only  matter  of  conjecture. 
In  a  late  case  before  the  English  Court  of  Exchequer,  the  houses 
of  the  plaintiff  and  defendant  were  separated  by  a  house  belong- 
ing to  a  third  person.  The  three  houses  adjoined  one  another, 
and  had  all  been  visibly  out  of  the  perdendicular  for  upward  of 
thirty  years.  There  was  no  evidence  as  to  the  manner  in  which 
the  leaning  originated,  and  it  did  not  appear  that  there  had  ever 
been  any  connection  between  the  houses,  either  with  respect  to 
title,  possession  or  occupation.  The  defendant  in  pulling  down 
his  house  caused  the  adjoining  house  to  sink,  and  the  plaintiff's 
house,  having  lost  its  support,  fell  down.  In  an  action  brought 
to  recover  damages  for  the  injury,  it  was  held  that,  as  the  houses 
of  the  plaintiff  and  defendant  did  not  adjoin,  the  plaintiff  had 
gained  no  right  of  support  for  his  house  from  the  defendants ; 
but  the  court  expressly  guarded  themselves  from  stating  what 
their  opinion  would  have  been  if  the  two  houses  had  immediately 
adjoined  each  other.  It  seems  that  the  judgment  of  Bramwell,  B., 
was  expressly  founded  on  the  circumstance  that  the  plaintiff's 
enjoyment  of  the  support  for  his  house  was  not  shown  to  have 
been  open  and  as  of  right  {Solomon  v.  The  Vintners''  Company, 
4  Hm'ls.  (&  Nor.  R.,  585  ;  S.  C,  28  Z.  J.  Ex.,  370). 

"Where  two  persons  are  owners  in  severalty  of  two  moieties  of  a 
jparty  wall,  with  cross-rights  of  easement,  neither  can  pull  down 
Jiis  own  portion  of  the  wall  without  being  liable  for  disturbing 
ithe  rights  of  the  other ;  and  in  a  note  to  an  English  case,  herein- 
Sbefore  referred  to,  a  preference  is  given  to  ownership  by  parties  in 


RULES  RESPECTING   PARTY   WALLS.  355 

severalty  of  two  moieties  of  a  party  wall,  with  cross-rights  of  ease- 
ment, over  a  tenancy  in  common,  on   the  groand  that  partition 
might  be  claimed  by  tenants  in  common;  in  which  case  each 
would  hold  his  share  in  severalty,  without  being  liable  for  the 
consequences  if  he  pulled  down  his  share  of  the  wall  and  deprived 
the  other  of  support  ( Wiltshire  v.  Sidford,  1  Man.  cfe  Ryl.  B., 
403,' note;   S.  C,  8  Barn.  <&  Ores.  li.,  259,  note).     And  even 
where  no  right  of  support  exists,  if  the  party  pulling  down  his 
wall,  proceeds  so  irregularly  and  improperly  that  his  neighbor  is 
subjected  to  more  than  ordinary  risk,  he  may  be  liable  to  an 
action  if  an  accident  occurs ;  although,  it  seems,  the  party  injured 
may  not  have  done  all  that  he  could  for  his  own  protection  ( Wal- 
ters V.  Ffeil,  1  Mood.  <&  Malk.  B.,  364).     And  although  the 
property  injured  may  have  been  so  infirm  that  it  could  only  have 
lasted  a  few  months  longer,  the  party  improperly  removing  his 
own  wall  to  the  detriment  of  the  injured  property  would  be  liable, 
for  no  person  has  a  right  to  accelerate  the  fall  of  his  neighbor's 
house  because  it  happens  to  be  in  an  insecure  state.     The  age  and 
condition  of  the  property  injured  is  merely  a  circumstance  to  be 
taken  into  consideration  by  the  jury  in  determining  the  amount  of 
negligence  and  assessing  the  proper  damages  {Dodd  v.  Holme,  1 
Adolph.  <&  Ell.  i?.,  493;  S.  C,  3  Nev.  &  Man.  R.,  739). 

The  doctrine  was  laid  down  to  its  fullest  extent  in  a  case  before 
the  English  Court  of  Common  Pleas,  where  the  defendants  were 
held  liable  for  carelessness  in  underpinning  a  party  wall  between 
their  property  and  the  plaintiff,  whereby  injury  occurred  to  the 
latter.     The  plaintiff,  in  his  declaration,  charged  the  defendants 
with  conducting  themselves  so  carelessly,  negligently  and  impro- 
perly in  pulling  down  their  house,  and  in  omitting  to  use  proper 
precaution  in  that  behalf,  that  large  quantities  of  bricks,  mortar, 
etc.,  fell  from  the  defendants'  house  into  and  upon  the  plaintiff's 
house,  broke  the  windows,  skylights,  etc.,  and  occasioned  great 
consequential  damage.     The  plaintiff,  therefore,   complained  not 
of  some  mere  omission  on  the  part  of  the  defendants,  but  of  their 
doing  certain  acts  in  so  negligent  a  manner  that  by  those  very  acts 
the  plaintiff's  house  was  injured ;  and  the  court  held  that  it  made 
no  difference  whether  the  plaintiff  was  owner  in  severalty  of  the 
half  of  the  wall  which  was  next  his  house,  or  whether  he  and  the 
defendants  were  tenants  in  common  of  the  whole  wall ;  for  that  in 
either  case  the  action  was  maintainable  {Bradlee  v-  Chrisfe  Eos 


356  LAW  OF  FENCES. 

2?ital,  4  2fan.  <£;  Granger'' s  E.,  Y61 ;  and  vide  Davis  v.  BlacTcwall 
Railway  Company,  1  ib.,  T99 ;  Janes  v.  Bird,  5  Barn.  <&  Aid. 
JR.,  837 ;  Gayford  v.  NichoUs,  9  Exch.  B.,  708). 

Mention  may  be  made  of  a  case  in  the  English  Court  of  King's 
Bench  which  involved  the  principle,  where  the  lessor  of  the  premi- 
ses covenanted  to  repair  and  keep  in  repair  all  the  external  parts 
of  the  demised  premises.  He  was  held  liable  to  repair  a  boundary 
wall,  although  it  adjoined  other  buildings.  The  court  said  that 
the  wall,  even  before  the  neighboring  house  had  been  removed, 
was  an  external  part  of  the  demised  premises ;  that  the  external 
parts  of  premises  are  those  which  form  the  inclosure  of  them,  and 
beyond  which  no  part  of  them  extends;  and  that  it  is  immaterial 
whether  those  parts  are  exposed  to  the  atmosphere  or  rest  upon 
and  adjoin  some  other  building,  which  forms  no  part  of  the  previ- 
ous lot  ( Green  v.  Eales,  2  Queen^s  Bench  R.,  225 ;  see  McClure  v. 
Little,  19  Law  Times,  N'.  S.,  287). 

If  a  man  build  his  own  house  with  the  eaves  projecting  so  as  to 
discharge  rain-water  from  his  roof  upon  his  neighbor's  property, 
it  is  a  nuisance  for  which  an  action  will  lie.  But  the  right  to 
compel  tlie  owner  of  the  adjoining  property  to  receive  all  the 
water  dropping  from  the  roof  of  a  house  may  be  acquired  by  pre- 
scription. This  doctrine  has  long  since  been  well  settled,  espe- 
cially by  the  various  courts  of  England,  and  there  is  no  doubt  of 
its  universal  application  ( Vide  Lady  Broioii's  Case,  Palriier''s  R.j 
446 ;  Baton^s  Case,  9  CoMs  R.,  536 ;  Fay  v.  Prentice,  1  Cotn. 
Bench  R.,  828  ;  Battishill  v.  Reed,  18  ih.,  696 ;  TucJcer  v.  Need- 
man,  11  Adoljph.  &  Ell.  R.,  40;  Jmies  v.  Parkell,  1  Maiile  <& 
Selwyn's  Li.,  234),  And  where  this  right  exists  it  will  not  be 
destroyed  by  heightening  or  in  any  other  way  altering  the  house 
from  which  the  water  falls,  so  long  as  the  burden  upon  the  servient 
tenement  is  not  increased  {Thomas  v.  Thomas,  2  Cr.,  Mees.  & 
Ros.  R.,  34).  But  a  right  to  discharge  water  by  drops  upon  the 
property  of  another  gives  no  right  to  collect  the  water  in  a  spout 
or  gutter,  and  discharge  it  in  a  single  stream  over  his  land  {Rey- 
nolds V.  Clarke,  2  Ld.  Raym.  R.,  1399  ;  Was?iburn  on  Easements, 
392). 

It  seems  that  the  rule  of  the  civil  law  upon  this  subject  was,  in 
some  respects,  more  liberal  than  that  of  the  common  law.  By  the 
civil  law  a  right  of  building  in  such  a  way  as  to  overlay  the  adjoin- 
ing property,  and  of  discharging  rain-water,  might  be  acquired  by 


user 


RULES  RESPECTUXG   PARTY  WALLS.  357 

u.er-  these  rights  were  called  servltus  projiciendi,  and  servitus 
siilUcidH  et  fiuminis  recipiendi.  The  same  law  also  recognized 
the  servitudes  ilgni  {mmitte7idl  and  oneris  ferendi.  By  the  former 
of  these,  a  man  might  compel  his  neighbor  to  submit  to  a  beam 
being  let  into  or  placed  upon  his  wall.  By  the  latter,  the  owner 
of  arouse  might  be  compelled  to  give  support  to  the  adjoinmg 
house  or  wall,  and  might  even  be  compelled  in  some  cases  to  keep 
the  servient  tenement  in  repair,  though  while  the  repairs  were  m 
proo-ress  he  was  discharged  from  the  obligation  of  giving  support 
{Cdqnhoun'8  Summary,  §§  941-943  ;  Gale  on  Easements,  Uh  ed., 
478-483 ;  Hunt's  Law  of  Bound,  and  Fences,  U  ed.,  119). 

It  is  understood  that  tenancy  in  common  of  a  party  wall  or 
fence  does  not  imply  any  obligation  on  the  part  of  one  tenant  m 
common  towards  his  co-tenant  to  repair.     If  two  owners  are  own- 
ers in  severalty  of  two  moieties  of  a  party  wall,  either  may  main- 
tain trespass  for  injury  done  to  his  half  of  the  wall,  and  in  case  of 
ouster,  may  bring  ejectment  for  the  same  {Matts  v.  Ilaichms  ^ 
Taunt.  R.,  20;  Trothe  v.  Simpson,  5    Car.  <&  Paynes  A.,  51; 
and  vide  Murly  v.  McDermott,  8  Adoli^h.  &  Ell.  i?.,  138).     But 
neither  trespass   nor  trover  will  lie  by  one  tenant  in   common 
acninst  another,  unless  there  has  been  a  total  destruction  or  con- 
^^M•sion  of  the  common  property;  neither  will  ejectment  lie  unless 
an  actual  ouster  of  the  plaintiff  from  the  common  property  by  the 
defendant  be  proved  {Vide  Tyler  on  Ejectment,  41,  42,  l^^^and 
authorities  cited;  also  Stedman  v.  Smith,  8  Ell.  cfe  Blach.  i?.,  1 ; 
Jacobs  y.  Seward,  4  L.  B.,  C.  P.,  328).     The  authorities  are  clear 
that  trespass  will  lie  for  pulling  down  a  wall  or  destroying  a  tree, 
carrying  away  boundary  stones,  grubbing  up  a  hedge,  and  the  like 
injuries  to  the  common  property  ;  but  not  for  pulling  down  a  wall 
with  intent  to  rebuild  it,  though  an  action  on  the  case  m^  the 
nature  of  waste  might  lie,  under  such  circumstances,  as  it  will  in 
any  other  case  where  one  tenant  in  common  misuses  the  common 
property.     But  Bayley,  J.,  in  pronouncing  judgment  in  one  case 
in  the  English  Court  of  King's  Bencli,  declared  that  if  one  ot  two 
tenants   in   common  of  a  wall  heightened  it  to  a  greater  extent 
than  was  proper,  the  remedy  of  the  other  was  to  remove  the  addi- 
tion, and  that  was  the  only  remedy  he  could  have   {Corhit  v. 
Porter,   8   Barn.  &  Cres.  P.,  270 ;  and  vide  Noye  v.  Reed,  1 
Mees.  &  Ros.  P.,  63 ;  Murray  v.  Hall,  7  Com.  Bench  P.,  441 ; 


358  LAW  OF  FENCES. 

Waterman  v.  Soper,  1  Ld.  Raym.  R.,  737;   Joyce  v.  Yoyce, 
Goio's  R.,  201 ;  Co.  LiU.,  200,  h.). 

E'o  action  can  be  maintained  by  one  tenant  in  common  against 
another  for  merely  clipping  a  hedge,  or  cutting  trees  in  it  of  a 
proper  age  and  growth,  because  that  would  have  the  effect  of 
enabling  one  tenant  to  prevent  another  from  taking  the  fair  profits 
of  the  estate  {Martyn  v.  luioUys,  8  Term  R.,  145 ;  Jacols  v. 
Seward,  4  £.  R.,  C.  P.,  328).  And  it  has  been  held  that  a  cove 
nant  not  to  grub  up  trees  or  hedges  is  broken  by  removing  them 
from  one  part  of  the  premises  to  another,  or  by  taking  them  away 
(unless  they  were  decayed)  for  the  purpose  of  planting  a  larger 
number  in  their  stead  [Doe  d.  Witherall  v.  Bh^d,  6  Car.  <& 
Payne's  R.,  195).  If  trees  be  severed  from  the  freehold  by  one 
of  two  tenants  in  common,  and  converted  into  money,  the  joint 
interest  is  at  an  end ;  they  are  owners  in  severalty  of  the  money 
produced  by  the  sale,  and  an  action  for  money  had  and  received 
may  be  supported  by  one  against  the  other  for  his  share  (  Wheeler 
V.  Merne,  Wille's  R.,  209 ;  Martyn  v.  Rnollys,  8  Term  R.,  146). 

An  occupant  of  land  who  is  bound  to  maintain  a  fence  between 
his  own  and  an  adjoining  inclosure  may  place  half  a  fence,  of  rea- 
sonable dimensions,  on  the  land  of  the  adjoining  owner ;  and  he 
may  cut  half  of  a  ditch  on  the  land  of  such  owner,  where  a  ditch 
is  proper  for  a  partition  fence  {Newell  v.  Hill,  2  Met.  R.,  180). 
And  it  may  also  be  affirmed  that,  where  a  person  has  once  become 
liable,  either  by  agreement  or  prescription,  to  repair  a  fence  for 
the  benefit  of  his  neighbor,  he  will  be  liable  for  all  the  consequen- 
ces arising  from  his  neglect  if  he  fail  to  make  the  requisite  repairs. 
Thus,  in  a  leading  case  in  the  English  Court  of  Exchequer,  it  was 
held  that  an  action  was  maintainable  against  the  defendant  for  the 
defective   state  of  his  fences,  which  he  was  bound  to  repair,  ^^r 
quod  the  plaintiffs  horses  escaped  into  the  defendant's  close  and 
were  there  killed  by  the  falling  of  a  haystack  {Howell  v.  Salisbury, 
2  Tounge  c&  Jervis'  R.,  391).     And  in  a  very  old  English  case, 
where   the   plaintiffs   horse  escaped  into   the   defendant's  field, 
through  defects  in  fences  which   the   defendant  was  bound  to 
repair,  and  was  there  killed  by  falling  into  a  ditch,  it  was  held 
that  the  defendant  was  liable  for  the  consequences  {Anonymous, 
1  Ventris'  R.,  264).     This  doctrine  is  well  illustrated  by  cases 
arising  in  the  States  where  fences  are  regulated  by  statute,  which 
will  be  referred  to  hereafter.     It  may  be  stated  in  this  connection 


CONSEQUENCES   OF  DEFECTIVE  FENCES.  3j9 

that  if  cattle  escape  into  an  adjoining  close  through  defects  in  the 
fences,  which  the  tenant  of  the  close  is  bound  to  repair,  he  is  not 
justified  in  driving  them  into  the  highway  and  leaving  them 
there.  Said  Lord  Denman,  of  the  English  Court  of  King's  Bench  : 
"It  is  perfectly  clear  that  the  least  to  be  expected  from  a  party  in 
the  situation  of  the  defendant  here  is  that  he  should  put  back  the 
sheep  into  the  place  in  which  they  were  before  they  quitted  it  in 
consequence  of  his  neglect"  {Carruthers  v.  Ilollis^  8  Adolph.  da 
Ell.  R.,  113 ;  S.  C,  3  Nev.  <&  Perry's  R.,  2-46). 

To  enable  one  adjoining  owner  to  maintain  an  action  against 
another  in  consequence  of  defective  fences,  it  is  not  necessai»y  that 
the  injury  should  have  happened  to  his  own  beasts.  The  action 
will  equally  lie  for  injury  committed  to  animals  in  his  temporary 
possession,  and  even  although  he  may  be  only  a  gratuitous  bailee. 
Thus,  in  the  English  Court  of  King's  Bench,  where  A.  sent  his 
horse  for  the  night  to  B.,  who  turned  it  out  after  dark  into  his 
pasture  field,  adjoining  to  and  separated  from  a  field  of  C.  by  a 
fence  which  C.  was  bound  to  repair,  and  the  horse,  from  the  bad 
state  of  the  fences,  fell  from  one  field  into  the  other  and  was 
killed,  it  was  held  that  B.,  though  a  gratuitous  bailee,  might  main- 
tain an  action  against  C.  for  tlie  value  of  the  horse.  Mr.  Justice 
Holroyd  said :  "  The  plaintifl'  was  entitled  to  the  benefit  of  his 
field,  not  only  for  the  use  of  his  own  cattle,  but  also  for  putting 
in  the  cattle  of  others,  and  by  the  negligence  of  the  defendant  in 
rendering  the  field  unsafe  he  is  deprived  in  some  degree  of  exer- 
cising his  right  of  using  that  field  for  either  of  those  purposes. 
Whether,  therefore,  the  damage  accrues  to  his  own  cattle,  or  the 
cattle  of  othei's,  he  still  may  maintain  an  action."  And  Lord 
Ellenborough  observed  :  "  The  plaintiff"  certainly  was  a  gratuitous 
bailee,  but  as  such  he  owes  it  to  the  owner  of  the  horse  not  to  put 
it  into  a  dangerous  pasture,  and  if  he  did  not  exercise  a  proper 
degree  of  care  he  would  be  liable  for  any  damage  which  the  horse 
might  sustain.  Such  liability  is  sufficient  to  enable  him  to  main- 
tain this  action  ;  he  has  an  interest  in  the  integrity  and  safety  of 
the  animal,  and  may  sue  for  a  damage  done  to  that  interest" 
{Booth  V.  Wilson,  1  Barn.  <&  Adolph.  R.,  59  ;  vide  Broadwater 
v.  Blot,  Ilolfs  R.,  547).  And  in  a  case  in  the  American  courts, 
the  plaintiff  brought  his  action  against  the  defendant  for  not 
repairing  his  fences,  pe/'  quoad  the  plaintiff" 's  horses  escaped  into 
the  defendant's  close,  and  were  there  killed  by  the  falling  of  a  hay 


S60  LAW  OF   FENCES. 

Btack.  It  was  held  tliat  the  damage  was  not  too  remote,  and  thai 
the  action  M-as  maintainable  {Powell  v.  Salisbury,  2  Yoxmge  <&. 
Jew.  E.,  391). 

But  the  obligation  to  repair  the  fences  is  only  toward  the  occu- 
pier of  the  adjoining  close,  and  not  toward  strangers;  and  there- 
fore, a  party  seeking  to  take  advantage  of  the  obligation,  either  as 
excusing  a  trespass  or  as  rendering  the  obligor  liable  for  injuries 
happening  to  his  cattle,  must  show  an  interest  in  the  adjoining 
close,  or  a  i-ight  to  have  his  cattle  there.  For  if  the  cattle  of  one 
man  escape  into  the  land  of  another,  it  is  no  excuse  that  the  fences 
were  out  of  repair,  if  they  were  trespassers  in  the  place  from 
whence  they  came.  This  doctrine  is  obvious  in  principle,  and  is 
also  well  settled  by  authority  (  Vide  Right  v.  Baynard,  1  Free- 
maji's  Ji.,  379 ;  Sir  George  Sackville  v.  Mihvard,  22  II.,  6,  7,  8  ; 
Singleton  v.  Willia7nson,  7  Hurlstone  cfc  Norman'' s  i?.,  410 ;  S. 
C,  31  L.  J.,  Exch.,  17).  The  owner  of  an  uninclosed  field  may 
maintain  trespass  against  the  owner  of  an  animal  grazing  there, 
unless  such  owner  can  show  a  right  to  have  his  animal  there,  or  a 
legal  excuse  for  such  animal  being  at  large  ( Wells  v.  Hoioell,  19 
Johns.  /?.,  385).  And  upon  this  principle  it  has  been  held  that 
an  action  will  not  lie  for  carelessly  leaving  maple  syrup  in  an 
uninclosed  wood,  whereby  the  plaintiff's  cow,  being  suffered  to 
run  at  large,  and  having  strayed  there,  is  killed  in  drinking  it. 
The  reason  assigned  was  that  the  cow  had  no  right  there  {Bush  v. 
BrainmJ,  1  Cow.  R..,  78).  The  nucleus  of  the  authorities  upon 
the  subject  is  the  ancient  maxim,  that  no  man  shall  take  advan- 
tage of  his  own  wrong  or  negligence,  in  his  prosecution  or  defense, 
against  another. 

The  foregoing  are  principles  of  universal  application,  and  are 
recognized  both  where  the  subject  of  fences  is  regulated  by 
statute,  and  where  it  is  not.  It  is  pertinent,  therefore,  that  they 
be  distinctly  referred  to  in  this  place. 


STATUTES   OF  N.   Y.    RESPECTING   FENCES.  361 


CHAPTER  XXX. 

STATUTES    OF    THE    SEVERAL    STATES    RESPECTING    FENCES  —  LAWS    OP 

NEW  YORK RULES  RESPECTING  DIVISION  FENCES PRESUMPTIONS 

WHERE  THE  SUFFICIENCY  OF  A  FENCE  COMES  IN  QUESTION PLEAD- 
INGS IN  SUCH  CASES. 

By  tlie  statutes  at  present  in  force  in  the  State  of  New  York, 
where  two  or  more  persons  shall  have  lands  adjoining,  each  of 
them  is  required  to  make  and  maintain  a  just  and  equal  propor- 
tion of  the  division  fence  between  them,  in  all  cases  where  such 
adjoining  lands  shall  be  cleared  or  improved.  And  where  such 
adjoining  lands  shall  border  upon  any  of  the  navigable  lakes, 
streams  or  rivers  within  this  State,  it  is  made  the  duty  of  the 
owners  thereof  to  maintain  such  division  fence  down  to  the  line 
of  low-water  mark  in  such  lakes,  streams  and  rivers.  "Whenever 
such  adjoining  lands,  one-half  or  more  of  which  are  improved, 
shall  be  bounded  by  or  upon  either  bank  of  a  stream  of  water  not 
navigable,  the  fence-viewers  of  the  town  in  which  the  same  are 
situated  are  required  to  direct,  in  the  manner  specified  in  the 
statute,  upon  which  bank  of  such  stream,  and  where,  upon  such 
bank,  the  division  fence  shall  be  located,  and  the  portion  thereof 
to  be  kept  and  maintained  by  each  of  such  adjoining  owners  (1  B. 
S.,  Part  1,  ch.  11,  tit.  4,  art.  4,  §  30,  as  amended  hy  Laws  of  1871, 
ch.  635,  §  1,  and  Laws  o/1872,  ch.  377). 

The  statute  further  provides  that  where  two  or  more  persons 
shall  have  lands  adjoining  and  not  within  the  provisions  of  the 
foregoing  section,  as  amended,  each  of  them  shall  make  and  main- 
tain a  just  and  equal  proportion  of  the  division  fence  between 
them,  except  the  ONvner  or  owners  of  either  of  the  adjoining 
lands  shall  choose  to  let  such  lands  lie  open ;  and  if  he  shall  after- 
ward inclose  it,  he  is  required  to  refund  to  the  owner  of  the 
adjoining  land  a  just  proportion  of  the  value,  at  that  time,  of  any 
division  fence  that  shall  have  been  made  and  maintained  by  such 
adjoining  owner,  or  he  must  build  his  proportion  of  such  division 
fence.  And  where  a  person  shall  have  cleared  or  improved  lands 
lying  open,  he  is  required  to  refund  to  the  owner  of  the  adjoining 
land,  which  is  also  cleared  or  improved,  a  just  proportion  of  the 
value  of  any  division  fence  that  shall  have  been  made  and  raain- 
46 


g()2  LAW  OF  FENCES. 

tained  by  such  adjoining  owner  between  such  cleared  and  in.proved 
lands,  or  he  must  build  his  proportion  of  the  division  fence. 
Whenever  a  subdivision  or  new  apportionment  of  any  division 
fence  shall  become  necessary  by  reason  of  tlie  transfer  of  the  title 
of  either  of  the  adjoining  owners  to  the  whole  or  any  portion  of 
the  adjoining  lands  by  conveyance,  devise  or  descent,  such  sub- 
division or  new  apportionment  must  thereupon  be  made  by  the 
adjoining  owners  affected  thereby  ;  and  either  adjoining  owner 
must  refund  to  the  other  a  just  proportion  of  the  value,  at  the 
time  of  such  transfer  of  title,  of  any  division  fence  that  shall 
theretofore  have  been  made  and  maintained  by  such  other  adjoin- 
ing owner  or  the  person  from  whom  he  derived  title,  or  he  must 
build  his  proportion  of  such  division  fence.  The  value  of  any 
fence,  and  the  proportion  thereof  to  be  paid  by  any  person,  and 
the  proportion  to  be  built  by  liim,  must  be  determined  by  any  two 
of  the  fence-viewers  of  the  town  (1  B.  S.,  Part  1,  ch.  11,  tit.  4, 
art.  4,  §§  31,  32,  as  amended  hy  Laivs  of  1871,  oh.  635,  §§  2,  3). 

It  will  be  observed  that  this  statute  touching  division  fences 
does  not  prescribe  the  kind  of  fence  that  shall  be  made.  Each 
proprietor  of  lands  adjoining  is  to  make  and  maintain  a  just  pro- 
portion of  the  division  fence,  except  one  of  them  shall  clioose  to 
let  his  land  lie  open.  But  when  the  Legislature  speaks  of  fences^ 
and  division  fences,  some  idea  of  what  a  fence  is  is  at  once  sug- 
gested to  the  mind.  There  is  no  statute,  for  example,  authorizing 
the  erection  of  a  crooked  or  Virginia  fence  upon  the  line,  as  a 
division  fence  between  adjoining  proprietors,  and  yet,  as  a  matter 
of  fact,  a  large  proportion  of  all  tlie  division  fences  between 
adjoining  farms,  in  the  State  of  New  York,  are  the  worm  or  Yir- 
ginia  fence,  leaving  half  the  corners  upon  the  land  on  one  side  of 
the  mathematical  line,  and  the  other  half  upon  the  otlier  side. 
This  kind  of  fence  has  been  built  as  a  division  fence  in  the 
State,  time  out  of  mind,  so  tliat  it  has  become  a  part  of 
the  common  law  of  the  State  that  adjoining  owners  of  farms 
may  erect  such  fences  as  division  fences,  occupying  the 
necessary  quantity  of  laud  upon  each  side  of  the  mathematical 
line ;  and  such  fence  is  a  fence,  in  contemplation  of  law,  upon  the 
line  between  the  adjoining  farms.  And  the  courts  have,  indi- 
rectly at  least,  decided  in  accordance  with  this  view  ( Yide  Ferris 
V.  Van  Buskirh,  18  Barb,  i?.,  397).  The  Supreme  Court  of  the 
State   has   recently  held  that  the  doctrine,  as  to  division  fences 


STATUTES   OF  N.   Y.   RESPECTING   FENCES,  363 

being  placed  partly  on  tlie  land  of  each  owner,  has  its  foundation 
entirely  in  the  statute.  But  it  was  declared  that,  under  the 
statute,  it  is  clear,  upon  principle  and  authority,  that  the  owners 
are  bound  to  erect  and  maintain  a  line  or  division  fence,  and 
should  make  it  equally  upon  the  lands  of  each  (  TF«nwi  v.  Sabin, 
1  Lansing's  7?.,  79,  80). 

It  has  been  decided  that  the  exception  made  in  the  statute,  in 
favor  of  owners  of  adjoining  lands  who  "shall  choose  to  let  such 
land  lie  open,"  Avas  intended  to  apply  to  cases  where  lands  have 
been  partially  fenced  as  well  as  tliose  in  which  the  owner  chooses 
to  let  his  land  lie  altogether  in  commons.  The  language  of  the 
statute  is  quite  broad  and  comprehensive,  and  is  held  to  include 
any  case  where  the  owner  does  not  choose  to  inclose  his  land 
entirely  {Chryslar  v.  Westfall^  41  Bavh.  i?.,  159).  Previous  to 
the  amendment  of  1866,  the  exception  of  the  statute  w^as  in  favor 
of  those  who  chose  to  let  their  lands  lie  open  "  to  a  public  com- 
mon," instead  of  "  to  the  public ;"  and  the  courts  held  that,  under 
the  exception  as  it  then  stood,  the  person  who  wished  to  avoid 
maintaining  a  just  proportion  of  the  division  fence,  between  such 
land  and  that  owned  by  another  person  adjoining,  must  do  what 
amounted  to  a  license  to  the  people  of  the  town  to  go  upon  it,  and 
allow  their  cattle  to  feed  upon  it  without  being  trespassers,  until 
he  revoked  such  license  and  built  or  paid  the  expense  of  building 
his  just  proportion  of  such  division  fence.  It  was  said  that  when 
land  merely  "  lies  open,"  everybody  must  keep  off  of  it,  and  also 
prevent  their  cattle  going  upon  it,  or  they  will  be  trespassers. 
But  if  it  lies  open  "  to  a  public  common,"  the  law  implies  that  the 
owner  is  willing  that  any  person  may  go  upon  it,  and  that  cattle 
in  the  neighborhood  may  feed  upon  it.  This  was  the  construction 
put  upon  the  words  of  the  statute,  and  that  was  declared  to  be  their 
obvious  and  material  meaning  {Perhins  v.  Perkins,  44  Barh.  P., 
134). 

The  present  Supreme  Court  of  the  State  has  declared,  upon 
authority,  that  no  one  but  the  adjoining  owner  or  possessor  has 
any  interest  in  the  duty  or  obligation  of  another  to  build  or  main- 
tain a  division  fence  {Pyan  v.  The  Pochester  and  Syracuse  Pail- 
road  Company,  9  How.  Pr.  P.,  453).  But  the  old  Supreme  Court 
had  previously  declared  that,  under  the  statute,  there  could  be  nd 
reasonal;le  doubt  but  that  any  person  occupying  the  adjoining 
land,  and  interested  in  building  and  maintaining  a  division  felioe 


3G4  LAW  OF  FENCES. 

in  order  to  secure  tlie  full  enjoyment  of  the  use  of  liis  premises, 
would  be  entitled  to  the  benefit  of  the  statute  regulation,  without 
reg-ard  to  tlie  yarticulaT  estate  therein  belonging  to  him.  It  was 
said  that  the  right  to  build  and  maintain  the  fence  seemed  neces- 
sarily incidental  to  the  right  to  enjoy  the  use  of  the  land.  The 
latter  depends  upon  the  fonner ;  and  if  the  fence  may  or  must  be 
built,  to  enjoy  the  use  of  the  premises,  the  adjoining  occupants 
should  each  build  the  half  of  it.  It  was  thought  to  be  for  the 
benefit  of  each  that  the  law  should  be  so ;  for,  if  the  statute  does 
not  apply,  then  the  rights  of  the  occupants  are  as  at  common  law, 
and  each  is  bound  to  keep  his  cattle  within  the  boundary  line ; 
and  it  Avas  suggested  that  the  statute  was  enacted  to  relieve 
adjoining  occupants  from  the  inconvenience  of  this  rule  of  the 
common  law  {Bronk  v.  Becker^  17  AY  end.  B.,  320). 

The  statute  regulating  the  erection  and  maintenance  of  division 
fences  has  been  held  by  the  courts  of  the  State  to  be  applicable  to 
division  fences  between  railroad  companies  and  the  owners  of  the 
adjoining  lands.  It  was  accordingly  further  held  that  where  a 
fence,  between  a  railroad  and  the  adjoining  farms,  which  it  is 
the  duty  of  the  landowners  to  keep  in  repair,  is  destroyed  by  fire 
communicated  by  the  engines  in  use  upon  the  railroad,  and  the 
railroad  company  neglects  to  rebuild  such  fence,  this  will  not 
render  the  company  liable  for  the  value  of  a  horse  which  strays 
upon  the  track  of  the  road,  from  an  adjoining  pasture  where  it  is 
kept,  through  the  open  fence,  and  is  killed  by  the  engine.  Although 
the  railroad  company  may  be  liable  to  pay  the  owners  of  the  fence 
the  damages  occasioned  by  the  burning  thereof,  it  was  held  that 
it  was  under  no  legal  obligation  to  repair  it,  under  such  circum- 
stances; nor  have  the  owners  a  right  to  abandon  the  rest  of  their 
property,  and  charge  the  railroad  company  for  all  the  damages 
they  may  sustain  by  reason  of  such  neglect  or  abandonment,  while 
the  fence  remains  unrepaired  {Terry  v.  The  New  York  Central 
Railroad  Company.,  22  Barh.  B.,  574). 

The  statute  further  provides  that  where  two  or  more  persons 
shall  own  lands  adjoining,  in  case  either  of  them  shall  sell,  convey 
or  devise  such  lands,  or  any  portion  thereof,  the  owner  of  any 
division  fence  that  shall  have  been  theretofore  made  and  main- 
tained by  him  shall  not  be  deprived  of  his  interest  therein  in 
consequence  of  such  sale,  except  so  far  as  relates  to  the  grantor; 
and  in  all  cases  where  such  sale  or  devise  shall  interfere  with  or 


STATUTES   OF  N.   T.   RESPECTING  FENCES.  365 

aifect  the  division  fences  existing  between  snch  adjoining  owners 
at  the  time  of  snch  sale,  or  on  receiving  such  devise,  a  subdivision 
of  such  division  fence  shall  then  be  made  by  all  the  adjoining 
owners  affected  thereby ;  and  each  adjoining  owner  must  refund 
to  the  owner  of  the  adjoining  land  a  just  proportion  of  the  value 
at  the  time  of  such  sale,  or  on  receiving  such  devise  of  any  division 
fence  that  shall  have  been  theretofore  made  and  maintained  by 
such  adjoining  owner,  or  that  shall  have  been  made  and  main- 
tained by  the  persons  from  whom  he  received  such  title,  or  the 
adjoining  owner  must  build  his  proportion  of  such  division  fence. 
The  value  of  such  fence,  and  the  proportion  thereof  to  be  paid  by 
such  person,  and  the  proportion  of  the  division  fence  to  be  built 
by  him,  must  be  determined  by  any  two.  fence-viewers  of  the 
town  {Laws  0/I866,  ch.  540,  §  4). 

If  dispute  arises  between  the  owners  of  adjoining  lands,  con- 
cerning the  proportion  or  particular  part  of  fence  to  be  maintained 
or  made  by  either  of  them,  such  dispute  must  be  settled  by  any 
two  of  the  fence-viewers  of  the  town  ;  and  when  any  of  the  afore- 
said matters  shall  be  submitted  to  fence-viewers,  each  party  shall 
choose  one;  and  if  either  neglect,  after  eight  days'  notice,  to 
make  such  choice,  the  other  party  may  select  both.  The  fence- 
viewers  are  required  to  examine  the  premises  and  hear  the  alle- 
gations of  the  parties.  In  case  of  their  disagreement,  they  must 
select  another  fence-viewer  to  act  with  them,  and  the  decision  of 
any  two  is  made  final  upon  the  parties  to  such  dispute,  and  upon 
all  parties  holding  under  them.  The  decision  of  the  fence-viewers 
must  be  reduced  to  writing,  must  contain  a  description  of  the 
fence,  and  of  the  proportion  to  be  maintained  by  each,  and  must 
be  forthwith  filed  in  the  ofiice  of  the  town  clerk  (1  R.  S.,  Part  1, 
ch.  11,  tit.  4,  art.  4,  §§  33-36,  as  amended  hy  Laws  of  1850,  ch 
310). 

It  is  further  provided  by  the  statute  that  if  any  person,  liable 
to  contribute  to  the  erection  or  reparation  of  a  division  fence,  shall 
neglect  or  refuse  to  make  and  maintain  his  proportion  of  such 
fence,  or  shall  permit  the  same  to  be  out  of  repair,  he  shall  not  be 
allowed  to  have  and  maintain  any  action  for  damages  incurred,  but 
shall  be  liable  to  pay  to  the  party  injured  all  such  damages  as 
shall  accrue  to  his  lands,  and  the  crops,  fruit  trees  and  shrubbery 
thereon,  and  fixtures  connected  with  the  said  land,  to  be  ascer- 
tained and  appraised  by  any  two  fence-viewers  of  the  town,  and  to 


36(3  LAW  OF  FENCES. 

he  recovered  with  costs  of  suit;  which  appraisement  must  be 
reduced  to  writing,  and  signed  by  the  fence-viewers  making  the 
same;  but  the  same  is  made  only  prima  facie  evidence  of  the 
amount  of  such  damage  (1  B.  S.,  Pari  1,  ch.  11,  tit.  4,  art.  4, 
§  37,  as  amended  hy  Laws  ^t/"  1838,  ch.  261). 

It  has  been  held  by  the  old  Supreme  Court  of  the  State  that 
this  provision  of  the  statute  has  not  changed  the  common-law  rule, 
that,  where  the  cattle  of  one  of  two  adjoining  proprietors  are 
found  trespassing  upon  the  land  of  the  other,  the  owner  of  the 
cattle,  to  excuse  himself,  must  show  not  only  that  the  fences  which 
the  proprietor  was  bound  to  maintain  were  out  of  repair,  but  also 
that  the  cattle  passed  over  such  defective  fences.     And  it  was, 
accordingly,  further  held  that,  where  the  boundary  fence  between 
adjoining   proprietors   had  been   divided,    and   distinct   portions 
assigned  to  each  to  erect  and  maintain,  and  in  an  action  brought  by 
one  of  them  for  an  injury  by  the  cattle  of  the  other  it  appeared  that 
both  portions  of  the  fence  were  out  of  repair,  and  it  was  not  shown 
over  what  part  the  cattle  passed  to  the  plaintiff's  land,  the  plain- 
tiff was  entitled  to  recover  {J)eyo  v.  Stewart,  4  Denid*s  R.,  101). 
The  same  court  had  previously  held  that,  where  one's  cattle  are 
lawfully  placed  on  A.'s  land,  and  escape  thence  to  the  land  of 
another,  their  owner  is  entitled  to  the  same  exemption  from  liabi- 
lity, by  virtue  of  the  statute,  that  A.  might  claim  in  case  the  cat- 
tle had  been  his,  but  nothing  more.     Accordingly,  where  B.'s 
cattle  were  rightfully  pasturing  on  land  owned  and  occupied  by 
A.,  and  they  escaped  thence  to  the  adjoining  land  of  C.  through  a 
defect  in  the  division  fence  which  A.  was  bound  to  repair,  it  was 
held  that  C.  might  maintain  trespass  against  B.     And  it  was  inti- 
mated that,  as  the  cattle  were  on  A.'s  land  with  his  consent,  he 
might  be  treated  as  owner  of  them  for  all  the  purposes  of  a 
remedy,  either  at  the  common  law  or  under  the  statute.     Bron- 
Bon,  J,,  gave  the  opinion  of  the  court,  and  some  of  his  remarks  are 
so  pertinent,  in  respect  to  the  effect  of  the  statute,  that  they  may 
well  be  extracted.     He  says  :  "  Unless  one  of  the  owners  chooses 
to  let  his  land  lie  open,  each  party  is  bound  to  make  and  maintain 
a  just  proportion  of  the  division  fence;     *     *     *     and  the  party 
who  is  in  default  has  no  remedy  for  a  trespass  by  the  cattle  of  the 
adjoining  owner.     *     *     *     When  the  party  who  suffers  by  the 
trespass  is  not  in  fault  in  relation  to  the  division  fence,  the  statute 
has,  to  some  extent,  given  him  a  new  remedy  by  calling  in  the 


STATUTES   OF  X.   Y.   RESPECTING    FENCES.  §07 

fence-viewers  to  appraise  his  damages;  but  as  the  act  of  1838  has 
restricted  the  damages,  and  made  the  appraisement  only  prisma 
facie  evidence  of  the  amount,  the  new  remedy  is  no  longer  of  any 
great  value.  By  the  Revised  Statutes,  the  party  who  permitted 
his  portion  of  the  fence  to  be  out  of  repair  was  liable  to  pay  the 
party  injured  '  all  such  damages  as  shall  accrue  thereby ;'  and  it 
came  very  near  being  decided  that  this  not  only  made  him  liable 
for  the  trespass  of  his  own  cattle,  but  for  all  the  consequences 
which  might  result  to  his  neighbor's  cattle  through  his  neglect  to 
repair.  The  members  of  the  Court  for  the  Correction  of  Errors 
were  equally  divided  in  opinion  upon  the  question  {Clarh  v. 
Br^oivn,  18  Wend.,  213).  This  case  led  to  the  act  of  183S,  which 
restricts  the  remedy  of  the  injured  party  to  such  damages  as  shall 
accrue  to  liis  lands,  crops,  fruit  trees,  shrubbery,  and  fixtures  con- 
nected with  the  land  "  {Stafford  v.  Liger&ol,  3  IliWs  R.,  38,  40). 
The  doctrine  of  this  case  has  been  several  times  approved  by  later 
decisions,  and  it  is  certainlj^  good  law  (  Vide  Burnham  v.  Onder- 
d(mlc,  41  JSf.  Y.  R.,  425,  433 ;  Handman  v.  Boiven,  39  ib.,  196, 
198;  Lownj  v.  Inm.an,  37  IIoiv.  Pi\  i?.,  153,  158;  Bean  v. 
Eldridge,  29  ih.,  218,  222). 

In  an  early  case  before  the  present  Supreme  Court  of  the  State, 
it  appeared  that  Hewitt  and  Watkins  were  the  owners  of  adjoin- 
ing land.  Watkins  let  his  land  lie  open,  and  Hewitt  built  the 
whole  of  the  division  fence  between  them.  Afterward  Watkins 
inclosed  his  land,  and  a  dispute  having  arisen  between  the  parties 
as  to  the  value  of  the  division  fence  and  the  proportion  thereof 
which  Watkins  ought  to  pay  to  Hewitt,  it  was  held  that  the  fence- 
viewers  of  the  town  had  jurisdiction  of  the  matter,  under  the 
statute.  And  it  was  further  held  that  the  decision  of  the  fence- 
viewers,  in  such  a  case,  should  be  reduced  to  writing  and  filed  in 
the  office  of  the  town  clerk  ;  and  that  where  the  dispute  is  as  to 
the  value  of  the  fence,  and  the  proportion  thereof  which  one 
party  should  pay  to  the  other,  it  should  specify  such  sum,  and  an 
action  will  lie  to  recover  the  same.  And  further,  if  the  dispute 
relate  only  to  the  value  and  sum  to  be  paid,  and  there  be  no  dis- 
pute about  the  proportion  of  the  fence  to  be  maintained  by  each, 
the  certificate  is  valid,  although  it  is  silent  about  the  proportion  to 
be  maintained  by  each.  It  Avas  said  to  be  enough  that  it  disposes 
of  the  matter  submitted  to  the  fence-viewers  {Hewitt  v.  ^Yatkins^ 
11  Barl.  R.,  409). 


368  i.4TF   OF  FENCES. 

The  statute  provides  that  wliere  any  person,  who  has  been 
determined  by  the  fence-viewers  to  be  liable  to  contribute  to  the 
erection  or  reparation  of  a  specified  portion  of  a  division  fence, 
shall  neglect  or  refuse  to  contribute  to  the  same,  as  required,  for 
the  period  of  one  month  after  request  in  writing  to  make  or 
repair  such  fence,  the  party  injured  may  make  or  repair  the  same 
at  the  expense  of  the  party  so  neglecting  or  refusing,  to  be 
recovered  from  him,  with  costs  of  suit.  And  if  any  person  who 
shall  have  made  his  proportion  of  a  division  fence  shall  be  dis- 
posed to  remove  his  fence  and  suffer  his  lands  to  lie  open,  he  may 
do  so,  provided  such  lands  are  not  cleared  or  improved,  at  any 
time  between  the  first  day  of  November  in  any  one  year,  and  the 
first  day  of  April  following,  but  at  no  other  time,  giving  ten  days' 
notice  to  the  owner  or  occupant  of  the  adjoining  land  of  his  inten- 
tion to  apply  to  the  fence-viewers  of  the  town  for  permission  to 
remove  his  fence;  and  if  at  the  time  specified  in  such  notice  any 
two  of  such  fence-viewers,  to  be  selected  as  aforesaid,  shall 
determine  that  such  fence  may  with  propriety  be  removed,  he 
may  remove  the  same  (1  R.  S.,  Part  1,  ch.  11,  tit.  4,  a7't.  4. 
§§  38,  39,  as  amended  hy  Laios  of  1871,  ch.  635,  §  4).  And  it  is 
declared  by  the  statute  that  if  any  such  fence  shall  be  removed, 
without  such  notice  and  permission,  the  party  removing  the  same 
shall  pay  to  the  party  injured  all  such  damages  as  he  may  sustain 
thereby,  to  be  recovered,  with  costs  of  suit  (1  H.  S.,  Part  1,  ch. 
11,  tit.  4,  art.  4,  §  40). 

Where  there  has  been  a  division  fence  between  the  owners  of 
adjoining  lands,  and  one  of  them,  after  having  given  the  notice 
and  obtained  the  permission  of  tlie  fence-viewers  in  the  case  pro- 
vided by  the  statute,  removes  his  part  of  the  fence,  and  his  cattle 
enter  upon  the  lands  of  his  neighbor,  the  owner  of  such  cattle  is 
liable  to  an  action  of  trespass  at  the  suit  of  his  neighbor,  notwith- 
standing the  fence  was  not  removed  until  the  permission  was  duly 
obtained,  and  within  the  time  specified  by  the  statute.  This  doc- 
trine is  extracted  from  a  case  decided  when  the  statute  was  sub- 
stantially as  it  is  at  present.  And  it  was  held  in  tlie  same  case, 
and  it  is  applicable  as  the  law  now  is,  that  the  only  effect  of  throw- 
ing up  land,  or  permitting  it  to  lay  open,  is  to  remit  the  parties 
to  their  common-law  rights  and  duties,  which  are  :  tliat  a  tenant 
of  a  close  is  not  obliged  to  fence  against  an  adjoining  close,  and 
without  such  fence  may  bring  trespass  for  an  entry  of  cattle ;  the 


STATUTES   OF  N.   Y.    RESPECTING   FENCES.  369 

owner  of  the  cattle  being  obliged  to  keep  tliein  on  his  own  pre- 
mises, in  the  absence  of  an  agreement  or  prescription  about  fences 
{Ilolladay  v.  Ifarsh,  3  Wend.  12.,  142 ;  and  vide  Richardson  v. 
McDougal,  11  il.,  46). 

It  is  j)rovitled  by  the  statute  that  whenever  a  division  fence 
shall  be  injured  or  destroyed  by  floods,  or  other  casualty,  the  per- 
son bound  to  make  and  repair  such  fence,  or  any  part  thereof, 
shall  make  or  repair  the  same,  or  his  just  proportion  thereof, 
within  ten  days  after  he  shall  be.  thereunto  required  by  any  per- 
son interested  therein.  Such  requisition  must  be  in  writing,  and 
signed  by  the  party  making  it.  And  if  such  person  shall  refuse 
or  neglect  to  make  or  repair  liis  proportion  of  such  fence  for  the 
space  of  ten  days  after  such  request,  the  party  injured  may  make 
or  repair  the  same  at  the  expense  of  the  party  so  refusing  or  neg- 
lecting, to  be  recovered  from  him,  with  costs  of  suit  (1  R.  S.,  Part 
1,  ch.  11,  tit.  4,  art.  4,  §§  41,  42).  It  may  be  stated  that,  as- 
the  statute  formerly  stood,  persons  owning  vacant  lots  in  a  city  or 
village  could  not  be  required  to  contribute  to  the  erection  and' 
maintenance  of  a  division  fence,  provided  they  chose  to  let  their 
lots  lie  open  to  the  public.  But  as  the  law  now  stands,  they  may 
be  required  to  maintain  a  just  proportion  of  the  division  fences 
between  their  lots  and  those  of  the  adjoining  owners,  provided 
their  lots  are  cleared  or  improved,  as  is  most  usually  the  case. 

In  the  matter  of  practice,  the  statute  provides  that  witnesses 
may  be  examined  by  the  fence-viewers  on  all  questions  submitted 
to  them  ;  and  either  of  such  fence-viewers  has  the  power  to  issue 
subpoenas  for,  and  to  administer  oaths  to  such  witnesses,  and  each 
fence-viewer  and  witness  thus  employed  is  entitled  to  one  dollar 
and  fifty  cents'  per  diem.  Such  fence-viewers,  or  a  majority  of 
them,  must  determine  what  proportion  of  such  fees  shall  be  paid 
by  each  of  the  parties  interested  in  sucb  division  fence,  and  reduce 
their  determination  to  writing,  and  subscribe  the  same  and  file  it 
in  the  oflice  of  the  town  clerk  where  such  fence-viewers  shallj 
reside.  The  party  refusing  or  neglecting  to  pay  such  fence- 
viewers,  or  either  of  them,  is  made  liable  ta  be  sued  for  the  same 
with  costs  of  suit  (1  R.  S.,  Fart  1,.  cL  11,  tit.  4,  art.  4,  §43,  as 
amended  hy  Laws  o/*1866,  ch.  540,  §6^. 

It  is  also  provided  by  the  statute  that  wbere  the  sufficiency  of 
a  fence  shall  come  in  question  in  any  suit,  it  shall  be  presumed  tc 
have  been  suflicient,  until  the  contrary  be  established  (1  R.  S.y 
47 


370  ^^^^   ^^  FEXCES. 

Part  1,  ch.  11,  tit.  4,  art.  4,  §  45).  This  is  an  important  pro- 
vision in  respect  to  evidence,  and  should  be  remembered.  And 
again,  it  seems  to  be  well  settled,  as  another  question  of  practice, 
that  the  insufficiency  of  a  fence,  when  an  excuse  for  a  trespass,  is 
matter  of  defense,  and  this,  or  any  other  matter  of  defense  to 
excuse  the  trespass,  must  be  shown  by  the  defendant  {Colden  v. 
Eldrecl,  15  Johns.  R.,  220). 

An  interesting  case  was  very  lately  decided  by  the  Supreme 
Court  of  the  State,  wherein  it  appeared  that  the  plaintiff  and 
defendant  occupied  adjoining  lands  ;  the  plaintiff  removed  a  por- 
tion of  the  line  fence  between  them  and  notified  the  defendant 
that  he  had  done  so,  and  to  remove  his  cattle,  which  the  defend- 
ant did  not  do,  but  shortly  afterward  removed  the  remainder  of 
the  fence.  The  court  held  that  the  defendant  was  liable  for  dam- 
age done  to  the  plaintiff's  field  by  the  cattle,  after  the  entire 
fence  between  them  had  been  removed.  Johnson,  J.,  delivered 
the  opinion  of  the  court,  and  a  single  paragraph  from  the  opinion 
M'ill  show  the  ground  of  the  decision.  The  learned  judge  said : 
"  It  appears  from  the  evidence  that  the  line  fence  between  the 
two  farms  was  one  which  both  parties  had  been  in  the  habit  of 
removing  late  in  the  fall,  to  prevent  its  being  carried  away  by  the 
spring  floods,  and  replacing  again  in  the  spring  after  the  high- 
water  was  over.  The  plaintiff,  before  the  commission  of  the 
injuries,  removed  his  portion  of  the  fence  first,  and  gave  notice 
to  the  defendant  Henry  to  take  out  his  cattle.  The  defendant 
Henry,  within  a  few  days  afterward,  removed  his  portion  of  the 
line  fence  also,  but  did  not  take  his  cattle  out  of  the  field  sepa- 
rated by  tlie  line  fence  from  plaintiff's  meadow.  There  being  no 
line  fence  kept  up  by  either  party,  the  defendant  Henry  was  lia- 
ble for  the  injury  done  by  his  cattle  upon  the  pUintiff's  laA-d* 
(  Van  Slyck  v.  Siiell,  6  Lans.  B.,  299,  302). 


STATUTES   OF  N.   Y.   RESPECTmG   FENCES.  371 


CHAPTER  XXXI. 

STATUTES  OF  THE  SEVERAL  STATES  KESPECTING  FENCES  —  LAWS  OF 
NEW  YORK  — SUFFICIENCY  OF  FENCES  IN  THE  STATE,  HOW  DETER- 
MINED —  POWERS  OF  THE  ELECTORS    OF   THE   TOWNS  IN  SUCH  CASES. 

The  statutes  of  the  State  of  New  York  do  not  prescribe  what 
shall  be  deemed  a  lawful  fence  within  the  State  ;  but,  in  lieu  of 
that,  it  is  provided   that   the   electors  of  each  town   shall   have 
power  at  their  annual  town-meeting,  among  other  things,  to  make 
from  time  to  time  such  prudential  rules  and  regulations  as  they 
may  think  proper,  for  the  better  improving  of  all  lands  owned  by 
such  town  in  its  corporate  capacity,  whether  commons  or  other- 
wise •  for  maintaining  and  amending  partition  and  other  fences 
around  the  same,  or  any  part  thereof,  and  circular  fences  for  their 
lands,  gardens,  orchards  and  meadows;  for  protecting  such  lands 
from  any  trespass,  and  for  directing  the  time  and  manner  ot  using 
the  same.     And  they  have  the  power,  in  like  manner,  to  make 
the  like  rules  and  regulations  for  ascertaining  the  sufficiency  of 
all  fences  in  such  town  ;  for  determining  the  times  and  manner  m 
which  cattle,  horses  or  sheep  shall  be  permitted  to  go  at  large  on 
highways  ;  and  for  impounding  animals.     And  it  is  further  pro- 
vided tiiat  every  order  or  direction,  and  all  rules  and  regulations, 
made  by  any  town-meeting,  shall  remain  in  force  until  the  same 
ehall  be  altered  or  repealed  at  some  subsequent  town-meeting  (1 
R.  S.,  Part  1,  ch.  11,  tit  2,  art.  1,  §§  5,  9). 

There  is  another  provision  of  the  statute  to  the  effect  that, 
whenever  tlie  electors  of  any  town  shall  have  made  any  rule  or 
regulation  prescribing  what  shall  be  deemed  a  sufficient  fence  in 
such  town,  any  person  who  shall  thereafter  neglect  to  keep  a  fence 
according  to  such  rule  or  regulation  shall  be  precluded  from 
recovering  compensation,  in  any  manner,  for  damages  done  by  any 
beast,  lawfully  go'ing  at  large  on  the  highways,  that  may  enter  on 
any  lands  of  such  person,  not  fenced  in  conformity  to  the  said  rule 
or  regulation,  or  for  entering  through  any  defective  fence  (1  R^ 
S.,  Part  1,  ch.  11,  tit.  4,  art.  4,  §44). 

There  has  been  considerable  discussion  in  the  courts  of  the  State 
in  respect  to  the  power  of  towns  under  these  provisions  of  the 
statute,  and  a  doubt  was  early  expressed  whether,  under  a  similar 


372  -^^^^    OF  FENCES. 

statute,  a  town  had  power  to  interfere  with  the  interior  economy 
or  management  of  a  man's  farm,  by  compelling  him  to  keep  his 
swine  or  other  animals  shut  up  in  a  close  pen,  or  other  inclosure. 
And  a  by-law,  that  "  all  hogs  shall  be  kept  up,"  was  construed  to 
mean  that  no  hogs  should  go  at  large ;  which  meant  that  they 
should  not  be  free  commoners  upon  the  highway.  It  was  clearly 
intimated  that  a  town  had  no  power  to  prevent  the  inhabitants 
from  letting  their  hogs  go  at  large  upon  their  own  land.  But  it 
was  distinctly  declared  that,  if  the  defendant's  hogs  go  into  the 
adjoining  land  of  the  plaintiff  by  reason  of  the  partition  fence, 
which  the  plaintiff  is  bound  to  keep  in  repair,  being  insufficient, 
he  cannot  maintain  an  action  of  trespass,  and  in  the  case  before 
the  court  it  appeared  that  the  trespass  complained  of  was  not 
done  through  the  outer  fence,  adjoining  a  highway  or  common, 
but  through  an  inner  or  'partition  fence  between  the  two  neigh- 
boi-s,  and,  therefore,  it  was  held  that  the  by-law  had  no  applica- 
tiouj  and  that  the  case  rested  upon  common-law  principles,  inde- 
pendent of  the  by-law  [Shepherd  v.  Hees,  12  Johns,  i?.,  433).  Of 
course,  if  there  be  no  rule  or  regulation  in  the  town  allowing  cat- 
tle and  other  animals  to  run  at  large,  if  they  break  through  an 
outer  fence,  adjoining  a  highway  or  common,  the  doctrine  of  the 
common  law  will  apply,  and  the  owner  will  be  liable  in  trespass, 
although  the  fence  may  be  defective  or  insufficient.  Indeed,  as 
against  a  highway,  where  cattle  have  no  right  to  run,  no  fence  at 
all  is  necessary  to  enable  the  plaintiff  to  maintain  trespass.  The 
old  Supreme  Court  of  the  State  held,  at  a  very  early  day,  in  a 
case  where  it  appeared  that  the  defendant's  cattle  entered  the 
uninclosed  field  of  the  plaintiff  and  destroyed  the  grass,  it  not 
appearing  that  there  was  any  regulation  of  the  town  as  to  fences, 
or  as  to  cattle  running  at  large,  that  the  defendant  was  liable  for 
the  damages  in  an  action  of  trespass  (  Wells  v.  Howell,  19  Johns. 
B.,  385). 

The  question  has  also  been  considerably  discussed  as  to  whether 
the  statute,  authorizing  towns  to  make  rules  and  regulations  for 
ascertaining  the  sufficiency  of  fences  in  such  towns,  and  deter- 
mining the  times  and  manner  in  which  animals  shall  be  permitted 
to  go  at  large  on  highways,  hereinbefore  given,  is  justified  by  the 
Constitution  of  the  State,  and  the  matter  was  for  some  time  in 
considerable  doubt.  It  was  argued  that  the  public  have  but  a 
servitude  or  easement  of  way  over  private  lands  taken  for  high- 


STATUTES   OF  N.   Y.    RESPECTING   FENCES.  373 

ways;   and,  consequently,  the   public   and   individuals  have   no 
right  to  or  power  "over  it,  except  as  a  way.     It  was  thought  that 
it'^he  public  or  others  than  the  owners  of  the  fee  of  tlie  road 
could  depasture,  they  could  dig  up  the  soil,  build  upon  it,  and  cut 
down  the  trees.     If  they  could  take  the  grass,  no  good  reason  was 
seen  why  they  might  not  put  it  to  other  uses.     It  was  also  argued 
that  if  taking  the'' land  for  a  highway  gives  to  others  a  right  to 
depasture  it,  then  it  is  not  true  that  private  property  of  one  can- 
not be  taken  for  the  private  use  of  another;  and  the  boasted  secu- 
rity to  private  property  in  this  respect,  supposed  to  be  afforded  by 
our  laws,  is  nothing  more  than  a  false  though  beautiful  sentiment ; 
and  it  was  further  argued  that  even  if  a  town  has  power,  as  a 
matter  of  police  regulation,  to  compel  the  owner  to  fence  along 
the  highway,  and  keep  his  own  cattle  off  certain  portions  of  the 
year,  tliat  confers  no  authority  to  give  a  license  to  other  persons 
to  appropriate  the  productions  of  the  soil  to  their  own  use.     This 
reasoning  was  certainly  very  forcible  to  show  that  neither  a  town 
nor  the  State  has  power  to  give  a  right  to  individuals  to  use  the 
land  appropriated  as  a  highway  only  as  a  public  thoroughfare  for 
travel,  and  that  all  except"  tliis  right  of  use  by  the  public  remains 
in  the  owner  of  the  soil,  and  cannot  be  taken  from  him  for  piivate 
use  without  his  consent  or  due  process  of  law.     Depasturing  of 
land  is  no  part  of  its  use  as  a  highway ;  and  if  the  statute  author- 
izes towns  to  license  owners  of  cattle  to  turn  them  at  large  on  to 
the  highways  for  the  purpose  of  grazing,  it  w^as  supposed  by  many 
to  be  so  tar  unconstitutional  and  void ;  and  this  idea  seemed  to  be 
sanctioned   by   sonie   of  the   decisions  of  the  courts.     In  a  case 
before  the  old  Supreme  Court  of  the  State,  Savage,  Ch.  J.,  said : 
"  Suppose  a  case  where  a  town  has  no  common  land,  and  they 
pass  a  by-law  permitting  cattle  to  run  at  large,  where  are  they  to 
run  ?     Surely  not  on  individual  property.     Where  then  ?  in  the 
highway?     The  public  have  simply  a  right  of  passage  over  the 
highway;  they  have  no  right  to  depasture  the  highway.     The 
owner  of  the  land  through  which  the  highway  runs  is  the  owner 
of  the  soil,  and  of  the  timber,  except  what  is  necessary  to  make 
bridges  or  otherwise,  and  in  making  the  highway  passable  (15 
Johns.  R.,  453) ;   and  if  the  owner  of  the  soil  owns  the  timber, 
wliy  not  the   grass?     This  question  has   never   been   distinctly 
raised  in  this  court ;  and  some  intimations  have  been  given,  from 
which  it  might  be  inferred  that  towns  have  a  right  to  permit 


374  LAW  OF  FENCES. 

cattle  to  run  at  large  in  the  highways ;  but  in  Stackpoole  v.  Ilealy 
(16  Mass.  B.,  33)  the  question  has  undergone  a  very  full  con- 
sideration and  discussion ;  and  the  Supreme  Court  of  Massachu- 
setts have  decided  that  the  public  have  no  such  right  in  highways. 
The  statute  in  that  State  is  in  stronger  terms  than  ours ;  but  it 
■was  holden  to  relate  to  common  lands  only,  and  not  to  highways" 
{RoUaday  v.  Marsh,  3  Wend.  E.,  142,  147).  But  the  point  was 
not  decided  by  the  court  in  the  case,  because  no  regulation  of  the 
town  was  shown  permitting  cattle  to  go  at  large ;  and  the  cattle 
for  whose  trespass  the  action  was  brought  were  held  to  be  in  the 
highway  without  authority  from  the  town.  The  same  doctrine, 
however,  was  laid  down  by  the  same  court  at  a  much  later  date, 
when  Beardsley,  Ch.  J.,  said  :  "  The  public  interest  in  a  highway 
comprehends  the  right  of  every  individual  to  pass  and  repass  upon 
it,  in  person  and  with  his  property,  at  his  own  pleasure ;  but  con- 
fers no  right  to  use  it  as  a  sheep-walk,  or  pasture  ground  for 
cattle.  Subject  to  this  right  of  passage,  and  the  right  to  make 
repairs  and  the  like,  the  soil  of  a  highway  and  the  grass  and  herb- 
age growing  thereon  are  still,  in  the  strictest  sense,  private  pro- 
perty. *  *  *  Cattle  at  large  in  the  highway  will  not  only 
trample  down,  but  also  crop  and  eat  the  grass  and  herbage  there 
growing ;  and  if  the  Legislature  have  power  to  authorize  their 
running  at  large  the  grazing  cannot  be  wrongful.  What  would 
this  be  but  taking  the  private  property  of  the  owner  of  the  land  as 
a  highway,  and  transferring  it  to  the  owner  of  the  cattle  ?  In  my 
judgment  the  Legislature  have  no  such  power,  whetlier  compensa- 
tion be  made  or  not ;  but  certainly  in  no  case,  unless  compensation 
is  made.  On  this  strict  ground,  I  think  the  town  regulation 
assuming  to  authorize  cattle  to  ^7'un  at  large,^  was  wholly  void" 
{The  Tonawanda  Railroad  Company  v.  Munger,  5  Demons  R., 
255,  264).  But  in  this  case,  the  remarks  in  respect  to  the  effect 
of  the  statute  under  consideration  were  obiter,  because  it  was  sub- 
stantially held  by  the  court  that  the  provisions  of  the  statute  did 
not  apply  to  the  case  at  bar.  The  case  was  taken  to  the  Court  of 
Appeals,  and  the  judgment  of  the  Supreme  Court  was  affirmed, 
independent  of  the  considerations  presented  in  the  extract  from 
the  opinion  of  Chief  Justice  Beardsley,  above  quoted  ;  and  the 
doctrine  was  laid  down  that  a  railroad  corporation,  by  proceedings 
duly  taken  under  its  charter,  acquires  the  title  to  lands  appropri- 
ated for  the  use  of  the  road.     And,  therefore,  when  cattle  escape 


STATUTES   OF  N.   T.    RESPECTING   FENCES.  375 

from  the  inclosnre  of  the  owner  and  stray  upon  the  track  of  a 
raib-oad,  they  are  regarded  as  trespassing  upon  the  Linds  of  the 
railroad  company  {^lunger  v.  The  Tonaii^anda  Railroad  Com- 
pany, 4  N.  Y.  li.,  349).  The  decision  of  this  case  in  the  Court 
of  Appeals  M^as  really  made  upon  the  ground  that  the  wrongful 
act  of  the  plaintiff  co-operated  with  the  misconduct  of  the  defend- 
ant to  produce  the  damage  complained  of.  But  it  is  proper  to 
remark  that,  since  the  damage  in  that  case  accrued,  the  general 
railroad  act  of  1848  has  been  passed ;  and  subsequently  it  has  been 
held  that  a  railroad  corporation  which  omits  to  comply  with  the 
statute,  as  to  erecting  fences  and  cattle-guards,  is  liable  to  the 
owner  of  the  cattle  which  stray  upon  the  track  from  an  adjoining 
close,  or  the  highway  crossing  it,  and  are  there  injured  by  the 
engines  of  the  company,  although  they  were  not  lawfully  in  such 
close  or  highway.  In  such  case,  the  mere  negligence  of  the  owner 
in  permitting  his  cattle  to  run  at  large  in  the  highway  which 
crosses  the  railroad  of  the  company  is  not  now  a  defense  to  the 
corporation  {Corwin  v.  The  New  York  and  Erie  Railroad  Com- 
fany,  13  N.  Y.  R.,  42).  This  is  not  pertinent  to  the  subject  now 
under  consideration,  and  still  it  is  proper  to  note  the  change  in 
the  rule  in  this  place. 

But  it  has  now  been  settled,  so  far  as  the  Supreme  Court  of  the 
State  can  settle  it,  that  the  statute  empowering  "  the  electors  of 
each  town,  at  their  annual  town  meeting,  to  make  rules  and  regu- 
lations for  ascertaining  the  sufficiency  of  all  fences  in  such  town, 
and  for  determining  the  times  and  manner  in  which  cattle,  horses 
or  sheep  shall  be  permitted  to  go  at  large  on  highways,"  is  not 
contrary  to  the  Constitution  of  the  State.;  and  it  has,  consequently, 
been  held  that  the  owner  of  a  close,  through  whose  defective  fences 
cattle,  lawfully  in  an  adjoining  close  on  the  highway,  have  entered, 
cannot  maintain  an  action  against  the  owner  of  such  cattle  for 
damages.  This  was  so  held,  in  the  first  place,  by  a  divided  court, 
in  a  case  in  which  Willard,  J.,  delivered  the  prevailing  opinion, 
in  which  he  examined  all  of  the  authorities  upon  the  subject,  and 
said :  "  In  all  the  cases  in  which  the  unconstitutionality  of  the  act  in 
question  has  been  doubted,  the  reasons  assigned  have  been,  that 
the  soil  and  grass  growing  on  a  highway  belong  to  the  owner  of 
the  land  through  which  the  road  passes,  and  that  the  public  have 
merely  a  right  of  passage  ;  and  that  the  effect  of  the  town  by-law 
is  to  take  the  private  property  of  the  owner  of  the  land,  without 


376  i.4TT^   OF  FENCES. 

compensation,  for  tlie  use  of  those  who  permit  tlieir  cattle  to  run 
at  large  on  the  highway.  *  *  *  Whatever  may  have  been 
the  force  of  this  argument  prior  to  the  Eevised  Statutes,  it  is 
obvious  that  since  the  1st  of  January,  1830,  it  is  based  upon  a 
false  assumption.  It  takes  for  granted  that  the  owner  of  the  land 
receives  compensation  merely  for  the  easement  or  right  of  pass- 
ao-e.  This  is  not  so.  The  statute  which  regulates  the  compensa- 
tion to  be  made  to  the  owner  through  whose  lands  public  high- 
ways arc  laid,  does  not  confine  the  damages  to  what  arises  from 
parting  with  a  mere  right  of  way.  '^  *  '=*  It  might  be  com- 
petent for  the  Legislature  to  take  the  entire  fee  of  the  land ;  in 
whicli  case  the  compensation  should  be  increased  accordingly.  It 
is  presumed  that  the  public  become  vested  with  such  interest  as 
the  Legislature  authorize  them  to  use.  *  *  *  The  damages 
of  the  owner  of  the  soil  are  regulated  by  what  he  relinquishes  to 
the  public.  He  thus  is  compensated  by  what  he  relinquishes  to 
the  public.  He  thus  is  compensated  not  only  for  parting  with  the 
rifht  of  way,  but  for  parting  with  the  right  of  pasturage.  Hence 
the  main  argument  on  which  the  objection  to  the  law  rests  is 
untenable. 

It  cannot  with  truth  be  said  that  a  by-law  like  the  one  in  ques- 
tion takes  the  property  of  one  man  and  gives  it  to  another,  or 
even  to  the  public,  without  compensation.  The  owner  of  the  soil 
is  not  deprived  of  the  pasturage,  any  more  than  he  is  of  the  way. 
He  can  enjoy  both  in  common  with  his  neighbors.  *  *  *  The 
right,  therefore,  to  establish  highways  over  the  land  of  an  indi- 
vidual, against  his  consent,  and  the  duty  of  making  compensation 
therefor,  must  be  considered  not  only  with  reference  to  the  ease- 
ment of  a  way,  but  also  with  reference  to  the  right  of  common 
for  such  doinestic  animals  as  tlie  Legislature,  at  the  same  time, 
.  authorized  the  electors  of  the  town  to  permit  to  run  at  large  on 
the  highway.  The  presnmption,  therefore,  is  that  the  owner  of 
the  soil  has  been  compensated  for  the  easement  of  a  way  and  the 
right  of  pasturage,  and  tliat  the  present  occupant  held  the  land  in 
subordination  to  the  rights  exercised  by  the  electors  of  the  town 
of  Pierpont."  This  view  was  concurred  in  by  Paige,  P.  J.,  but 
Hand,  J.,  dissented  {Griffin  v  Martin,  7  Barh.  R.,  297,  303,  304, 
306). 

The  case  of  Griffin  v.  Martin   did   not   go   to   the   Court   of 
Appeals,  but  it  has  been  referred  to  in  several  subsequent  cases 


STATUTES   OF  K.   T.    RESFECTING   FENCES.  377 

with  approval  in  the  same  court ;  and  in  a  later  case  hefore  the 
same  court,  the  doctrine  laid  down  was  expressly  affirmed,  and  the 
statute  under  consideration  was  unanimously  approved.  Harris, 
J.,  delivered  the  opinion  of  the  court,  and  after  giving  the  terms 
of  the  statute,  said :  "  It  is  due  to  tlie  fame  of  the  revisers  to 
notice  that  the  section  just  quoted  is  not  their  production.  Notli- 
ing  half  so  clumsily  or  obscurely  expressed  ever  came  from  their 
hands.  The  section  was  engrafted  on  the  article  that  had  been 
reported,  while  on  its  way  through  the  Legislature.  It  is  one  of 
those  enactments  which  Lord  Coke  described  as  '  penned  or  cor- 
rected, on  a  sudden,  by  men  of  very  little  or  no  judgment  in  the 
law.'  I  am  not  quite  sure  that  I  comprehend  it ;  but  if  I  have 
been  able  to  discover  its  meaning,  the  section  constitutes  a  statu- 
tory bar  to  every  action  brought  to  recover  damages  for  injuries 
done  by  cattle  entering  through  a  defective  fence,  which  the  party 
complaining  is  bound  to  maintain,  in  any  town  where  the  electors 
have  prescribed  what  shall  be  deemed  a  sufficient  fence.  This 
construction  of  the  statute  is,  of  course,  fatal  to  the  plaintiff's 
cause  of  action. 

''  Having  come  to  this  conclusion,  I  have  not  deemed  it  necessary 
to  discuss  at  length  the  validity  of  the  statute  which  authorizes 
the  electors  of  a  town  to  determine  the  times  and  manner  in 
which  horses,  cattle  and  sheep  shall  be  permitted  to  go  at  large 
on  highways.  It  is  enough  to  say,  that  I  have  not  much  doubt 
of  its  constitutionality.  The  statute  has  been  in  existence  since 
1788  at  least.  Lands  occupied  as  highways  may  well  be  deemed 
to  have  been  acquired  with  reference  to  the  exercise  of  the  autho- 
rity thus  conferred  upon  the  electors  of  the  town.  This  authority 
had  been  exercised  without  being  questioned  from  the  commence- 
ment of  the  State  government,  until  Judge  Cowen,  in  his  elabo- 
rate note  to  the  case  of  Bush  v.  Brainard  (1  Cowen,  78),  sug- 
gested a  doubt  as  to  the  right  of  the  Legislature  to  confer  this 
authority  upon  the  electors  of  the  towns.  This  doubt  was  reite- 
rated by  Chief  Justice  Savage  in  TloUoday  v.  Marsh  (3  Wend., 
142).  And  yet,  substantially  the  same  provision,  but  in  more 
explicit  and  unequivocal  terms,  was  reported  by  the  revisers,  and 
adopted  by  the  Legislature  in  the  revision  of  1830.  *  *  * 
In  Griffin  v.  Ilartin  (7  Barl.,  297),  the  question  came  before 
this  court  under  circumstances  very  similar  to  those  presented  in 
this  case  ;  and  it  was  determined  by  a  majority  of  the  court  (Hand 
48 


378  LAW  OF  FENCES. 

J.,  dissenting)  that  the  statute  in  question  is  not  in  confliet  with 
the  Constitution.  In  that  decision  I  concur.  I  regard  the  right 
to  allow  cattle,  horses  or  sheep  to  go  at  large  on  highways  as  one 
of  the  easements  or  servitudes  pertaining  to  the  land  occupied  as 
a  highway.  The  right  is  supported  by  usage  as  old  as  the  history 
of  our  country.  The  land  is  to  be  presumed  to  have  been  taken 
witli  reference  to  this  usage  and  the  exercise  of  this  right  by  the 
proper  autliorities.  The  owner  may  well  be  presmned  to  have 
been  compensated  for  this,  as  well  as  every  other  easement  or 
servitude  to  which  the  land,  as  a  highway,  may  be  subjected " 
{Rardenljurgh  v.  Loclcwood,  25  Barh.  E.,  9,  11,  12).  The  subject 
having  come  squarely  before  the  court  in  this  case,  and  the  vali- 
dity of  the  statute  in  question  having  been  nnanimously  affirmed, 
the  matter  may  be  considered  at  rest,  unless  it  shall  hereafter 
be  otherwise  determined  by  the  court  of  last  resort.  It  has  been 
thought  advisable  to  dwell  thus  much  upon  the  subject  here,  from  the 
fact  that  a  considerable  impression  has  obtained  from  the  opinion 
expressed  by  the  late  Judge  Cowen,  in  his  valuable  and  popular 
Treatise  on  the  Civil  Jui'isdiction  of  Justices  of  the  Peace,  adverse 
to  the  validity  of  the  statute,  provided  the  Legislature  intended  to 
give  to  the  electors  of  towns  the  power  which  was  clearly 
expressed.  The  views  of  Judge  Cowen  will  appear  from  the  fol- 
lowing extracts  from  his  work :  "  The  expression  used  in  the  old 
statute  was,  to  go  at  large  /  and  town  meetings  were  authorized 
to  determine  i\\Q  places  as  well  as  the  tiines  and  manner  of  cattle, 
etc.,  going  at  large.  Under  that  statute  it  was  thought  question- 
able whether  the  Legislature  intended  to  confer  upon  towns  the 
power  of  authorizing  cattle,  etc.,  to  run  at  large  in  the  highway. 
The  better  opinion  seemed  to  be  that  no  such  power  was  delegated 
to  the  towns,  inasmuch  as  the  language  used  was  ambiguous ;  and 
it  \vas  fair  to  presume  that  the  Legislature  would  not,  even  though 
it  were  concluded  they  had  the  constitutional  right  to  do  so,  take 
the  pro])erty  of  one  man  and  confer  the  right  of  using  it  upon 
others,  without  expressing  themselves  clearly  to  that  effect.  *  *  * 
By  reference  to  the  present  statute,  it  will  be  seen  that  no  doubt 
as  to  the  intention  of  the  Legislature  can  exist.  A  radical  change 
in  the  provision  of  the  statute  has  been  effected.  Formerly,  towns 
could  regulate  jpartition  and  circular  fences ;  which  provision,  as 
we  have  seen,  was  held  to  apply  only  to  fences  inclosing  the  com- 
mon lands  of  the  towns.     They  could  also  regulate  the  times, 


STATUTES   OF  N.   Y.   RESPECTING    FENCES.  879 

places  and  manner  of  permitting  cattle,  etc.,  to  go  at  large.  Now, 
they  are  authorized  to  make  rules  and  regulations  for  ascertaining 
the  sufficiency  of  ^  all  fences''  in  the  town;  that  is,  whether  such 
fences  inclose  the  common  lands  of  the  town  or  the  lands  of  indi- 
viduals. Also  for  determining  the  times  and  manner  in  which 
cattle,  etc.,  shall  be  permitted  to  go  at  large  on  Jdghways.  As  if 
to  remove  all  doubts  in  relation  to  the  intention  of  the  Legisla- 
ture, the  word  ^ i^laces^  which  was  contained  in  the  old  statute,  is 
struck  out,  and  the  words  ''on  highways''  inserted.  So  that,  under 
the  existing  statute,  the  towns  have  power  to  authorize  the  run- 
ning  at  large  of  cattle  on  highways,  provided  the  statute  enforcing 
that  power  be  not  unconstitutional,  -x  *  -h-  That  part  of  the 
provision  of  the  statute  which  authorizes  towns  to  prescribe  what 
shall  be  deemed  a  sufficient  fence  in  such  town  may  be,  and, 
undoubtedly,  is  proper  and  constitutional.  The  object  of  this 
enactment  is  simplj'  to  prevent  a  recovery  for  damages  done  by 
beasts  lawfully  going  at  large  on  highways,  that  may  enter  on 
lands  not  fenced  in  conformity  to  the  rule  prescribed  by  the  town, 
or  for  entering  through  any  defective  fences.  The  difficulty  is  as 
to  the  authority  of  the  Legislature  to  enact  that  cattle  are  lawfully 
at  large  on  the  highway,  except  in  the  one  case  of  using  it  for  the 
legitimate  purposes  of  a  road"  {Cowena  Tr.,  2c?  ed.,  383,  386, 
387). 

Soon  after  the  organization  of  the  present  Supreme  Court  of 
the  State,  a  case  came  before  the  court,  wherein  McCunn,  P.  J., 
incidentally  examined  the  constitutionality  of  the  statute  under 
consideration,  and  after  declaring  that  the  question  presented  did 
not  call  for  a  determination  of  the  validity  or  effect  of  the  statute, 
said  :  "  We  cannot,  therefore,  undertake  to  decide  the  question  at 
present,  though  we  think  there  can  be  very  little  doubt  of  the  con- 
stitutionality of  the  power  as  conferred  by  and  expressed  in  the 
statute,  but  that  the  power  is  not  to  be  understood  as  authorizing 
the  making  of  a  town  law,  by  which  horses,  cattle  and  sheep  shall 
be  pennitted  promiscuously  to  run  at  large  and  depasture  the  high- 
ways of  the  town.  On  the  contrary,  the  going  at  large  as  author- 
ized by  the  statute,  must  be  under  rules  and  regulations  as  to 
time  and  rnanner  ;  and  we  think  that  these  words  in  the  statute 
are  restrictive,  and  are  to  be  construed  with  a  due  regard  to  the 
rights  of  property  and  individual  ownership  of  the  soil  of  high- 
ways.    That  the  power   of  a   town-meeting  cannot   lawfully  be 


gSO  LAW  OF  FENCES. 

exercised,  beyond  allowing  the  owners  of  the  soil  to  turn  their 
own  animals  out  to  feed  on  such  parts  of  the  highway  as  they 
respectively  own  under  such  safeguards  (rules  and  regulations)  as 
shall  prevent  any  obstruction  of  the  public  use  or  travel,  and  as 
shall  at  the  same  time  avoid  collisions  and  trespasses  by  the  beasts 
of  one  owner  upon  the  property  of  another"  (  White  v.  Scott,  -1 
Jjarh.  H.,  56,  59).  Under  this  narrow  construction  of  the  statute, 
it  has  been  well  said,  none  but  the  great  landholders  could  derive 
any  benefit  from  it.  The  poor  tenants  and  other  inhabitants,  not 
owners  of  the  soil,  would  be  entirely  excluded,  and  this  forced 
construction  has  been  entirely  overruled  by  the  later  decisions. 
So  the  statute  is  held,  not  only  to  be  constitutional,  but  to  confer 
upon  the  electors  of  the  towns  tlie  power  which  its  plain  language 
imports.  The  question  M^as  formerly  much  more  important  to 
the  agricultural  population  of  the  State  than  it  is  at  present.  At 
an  early  day,  the  highways  of  the  State  were  pretty  generally 
depastured,  but  at  present,  very  many  of  the  towns  have  no  rules 
permitting  cattle  and  other  beasts  to  go  at  large,  and  the  highways 
are  without  fences,  and  their  margins  are  cultivated  or  cropped. 


CHAPTER  XXXII. 

STATUTES    OF    THE    SEVERAL    STATES    KESPECTING   FENCES  —  LAWS    OF 

NEW  YORK OBLIGATIONS  OF  RAILROAD    COMPANIES  IN  RESPECT   TO 

FENCES CONSEQUENCES  OF  NEGLECT. 

In  respect  to  the  obligations  of  railway  companies  in  the  State 
of  New  York  to  maintain  fences  along  their  roads,  the  statute 
provides  that  every  corporation  formed  under  the  general  railroad 
act,  shall  erect  and  maintain  fences  on  the  sides  of  their  road,  of 
the  height  and  strength  of  a  division  fence  required  by  law,  with 
openings  or  gates  or  bars  therein,  and  farm  crossings  of  the  road 
for  the  use  of  the  proprietors  of  lands  adjoining  such  railroad 
and  also  construct  and  maintain  cattle-guards  at  all  road  cross- 
ings, suitable  and  sufficient  to  prevent  cattle  and  animals  from 
getting  on  to  the  railroad.  And  until  such  fences  and  cattle- 
guards  are  duly  made,  the  corporation  and  its  agents  are  made  lia- 
ble for  all  damages  which  shall  be  done  by  their  agents  or  engines, 


STATUTES   OF  N.  T.   RESPECTING   FENCES.  381 

to  cattle,  horses  or  other  animals  thereon  ;  and  while  such  fences 
and  guards  are  duly  made  and  maintained,  the  corporation  will 
not  be  liable  for  any  such  damages  unless  negligently  or  willfully 
done  {Laws  of  1850,  ch.  140,  §44;  3  Stat,  at  Large,  635,  636). 
By  a  subsequent  act,  every  railroad  corporation  within  the  State 
is  required,  before  the  lines  of  its  road  are  opened,  to  erect  and 
thereafter  maintain  fences  on  the  sides  of  its  road  of  tlie  height 
and  strength  of  a  division  fence,  as  required  by  law,  and  farm 
crossings  and  cattle-guards  as  in  the  otlier  section  provided,  suffi- 
cient to  prevent  cattle,  horses,  sheep  and  hogs  from  getting  on  to 
such  railroad.  And  so  long  as  such  fences  and  cattle-guards  shall 
not  be  made,  and  when  not  in  good  repair,  such  railroad  corpora- 
tion and  its  agents  are  made  liable  for  damages  as  in  the  other 
section  provided.  The  statute  further  declares  that  a  sufficient 
post  and  wire  fence  of  requisite  height  shall  be  deemed  a  lawful 
fence,  within  the  provisions  of  the  act.  But  no  railroad  corpora- 
tion is  required  to  fence  the  sides  of  its  roads,  except  where  such 
fence  is  necessary  to  prevent  horses,  cattle,  sheep  and  hogs  from 
getting  on  to  the  track  of  the  railroad  from  the  lands  adjoining 
the  same.  It  is  made  the  duty  of  every  owner  of  land  adjoining 
any  railroad,  who  has  received  a  specific  sum  as  compensation  for 
fencing  along  the  line  of  land  taken  for  the  purpose  of  said  rail- 
road, and  has  agreed  to  build  and  maintain  a  lawful  fence  on  the 
line  of  said  road,  to  build  and  maintain  such  fence ;  and  if  said 
owner,  his  heirs  or  assigns,  shall  not  build  said  fence  within  thirty 
days  after  being  notified  so  to  do  by  the  said  railroad  corporation, 
or  shall  neglect  to  maintain  said  fences,  if  built,  said  corporation 
must  build  and  thereafter  maintain  such  fence,  and  may  maintain 
a  civil  action  against  the  j)erson  so  neglecting  to  build  or  main- 
tain said  fence,  to  recover  the  expense  thereof  {Laws  qf  1854,  ch. 
282,  §§  8,  9 ;  3  Stat,  at  Large,  643,  644).  And  there  is  still  another 
provision  of  the  statute,  by  which  the  lessee  or  lessees  of  the  rail- 
road of  any  railroad  corporation  are  required  to  maintain  fences 
on  the  sides  of  tlie  road  so  leased,  in  the  same  manner,  and  under 
the  same  conditions  as  the  original  corporation  was  previously 
obligated  and  required  {Laws  of  1864,  ch.  582,  §  2 ;  6  Stat,  at 
Large,  367,  368). 

The  Court  of  Appeals  of  the  State  have  held  that  the  railroad 
act,  as  it  now  stands,  was  passed  from  public  considerations,  and 
that  its  purpose  was  to  protect  the  traveling  public  as  well  as 


382  LAW  OF  FENCES. 

farmers  along  the  lines  of  the  roads.     The  court  further  he^d  that, 
under  the  provisions  of  the  act,  railroad  companies  are  required  to 
fence  both  sides  of  their  track,  and  are  liable  for  damages  done  to 
cattle  as  long  as  such  fences  are  not  made  and  kept  in  good  order. 
And  it  was  held  to  be  no  defense  that  the  party  whose  cattle  were 
killed  was  legally  bound  to  build  such  fence,  under  a  covenant 
between  his  assignor  and  the  company.     It  was  the  duty  of  the 
company  to  see  the  fence  buitt ;  and,  tailing  in  that,  it  was  liable. 
Judge  Peckham,  who  delivered  the  opinion  of  the  court,  also  gave 
a  construction  to  the  clause  of  the  statute,  declaring  that  "  no  rail- 
road corporation  shall  be  required  to  fence  the  sides  of  its  roads 
except  where  such  fence  is  necessary  to  prevent  horses,  etc.,  from 
settino;  on  to  the  track  of  the  raih-oad  from  the  lands  adjoining 
the  same."     As  the  learned  judge  construed  the  statute,  it  was 
probably  aimed  at  i-ivers  or  lakes,  through  whose  borders  the  rail- 
roads might  run,  and  where  a  fence  would  be  unnecessary ;  or,  in 
other  cases,  where  high  rocks  or  other  obstructions  would  render 
it  unnecessary  to  fence  against  the  invasion  of  cattle  {Shejxird  v. 
The  Buffalo,  New  York  and  Erie  Railroad  Comjpany,  35  N.  T. 
7?.,  6il,  ^^<o).     The  case  holds,  therefore,  that  the  railroad  acts 
impose  the  duty  upon  railroad  companies  to  fence  both  sides  of 
their  track,  with  the  exceptions  stated,  and  that  they  are  liable  for 
damages  done  to  cattle,  so  long  as  such  fences  are  not  made  and 
kept  in  good  order. 

The  doctrine  of  the  last  case  cited  was  approved  in  a  later  case, 
before  the  same  court,  in  which  it  was  declared  that  the  passage 
of  the  act  in  question,  being  induced  by  public  considerations,  and 
its  purpose  being  to  protect  the  traveling  public  and  the  owners 
of  domestic  animals  along  the  line  of  railroads,  should  receive  a 
liberal  construction  to  efiectuate  the  benign  purpose  of  its 
framers.  The  action  was  for  damages  for  killing  a  cow  through 
the  alleged  negligence  of  the  defendant.  The  injury  complained 
of  was  caused  by  an  engine  of  the  defendant,  while  running,  not 
upon  its  own  track  or  road,  but  upon  that  of  the  Troy  Union 
Eailroad  Company,  a  corporation  that  embraced  the  directors  of 
the  defendant  and  also  of  other  companies,  who  alone,  by  the 
charter  of  the  Troy  Union  Eailroad  Company,  and  a  contract 
therewith,  were  authorized  to  operate  the  road  of  the  latter.  The 
defense  to  the  action  was  that  the  defendant  was  not  liable  for 
injuries  caused  by  running  its  engines  upon  the  track  of  the  Troy 


STATUTES   OF  N.   Y.    RESPECTING   FENCES. 


383 


Union  Railroad  Company,  without  erecting  or  maintaimng    he 
fences  or  cattle-guards  required  by  statute.     The  court  held  that 
the  defendant  was  essentially  an  owner  and  operator  of  the  road, 
and,  within  the  spirit  and  intent  of  the  statute  in  regard  to  fences 
was  liable  for  the  injury  con.plained  of.  /nd  the  co..t  approved 
the  doctrine  of  the  case  of  Clement  v.  CanfieU  {^^  Vl^      ..^ 
that  the  lessee  of  a  railroad,  while  operating  it,  is  liable  if  the 
fences  are  not  maintained  {Tmcy  v.  The  Troy  and  Boston  Rail- 
road Company,  38  N.  T.  B.,  433).  c  x         ^ 
It  seenfs  from  another  case  decided  by  the  Court  of  Appeals 
that,  notwithstanding  the  obligations  imposed  upon  railroad  com- 
panies by  the   statute  to  maintain  the  fences  along  the. r  roads, 
the   proprietors  of  lands  adjoining  have  also  a  duty  in  this  regard. 
Said  Selden,  J.:  "  Tliere  is  no  doubt  that  although  the  statute 
imposes  upon  the  railroad  company  the  absolute  duty  of  maintain- 
ing  fences,  gates,  etc.,  yet  a  duty  in  this  respect  also  devolves 
upon  the  proprietors  along  the  road.     They  have  no  right  quietly 
to  fold  their  arms  and  voluntarily  to  permit  their  cattle  to  stray 
upon  the  railroad  track,  through  the  known  deficiency  of  the  fences 
which  the  corporation  are  bound  to  maintain.     As  it  would  be 
impracticable  for  the  railroad  company  to  keep  a  constant  watch 
of  every  gate  and  every  rod  of  fence  along  the  line  ot  its  road,  it 
is  but  reasonable  to  require  of  the  proprietors,  where  defects  have 
actually  come   to   their  knowledge,  to   make  suitable  efforts  to 
apprise  the  company  of  such  defects.     In  enforcing  this  rule,  how- 
ever, upon  proprietors,  care  should  be  taken  not  to  exempt  the 
company,  upon  which  the  primary  duty  rests,  from  its  chie  share 
of  responsibility"  {Poler  v.   The  New  Yw^k  Central  Railroad 
Company,   16  N.    Y.  R.,  476,  481).     This  rule,  of  course,  can 
never  be  applied  where  no  fence  has  ever  been  built  along  the 
line  of  the  road,  and  probably  few  cases  will  arise  where  damage 
has  resulted  from  defects  in  the  fences  along  the  road,  of  which 
the  company  was  not  presumed  to  be  informed  (  Vide  McDowell 
v.  The  New  York  Geiitral  Railroad  Company,  37  Barl.R.,  195 ; 
Staats  V.  The  Hudson  River  Railroad  Company,  33  How.  Pr. 
R.,  139).     The  Court  of  Appeals  have  also  settled  the  principle 
that  where  a  railroad  corporation  neglects  to  maintain  fences  and 
cattle-guards  along  its  road,  as  required  by  the  general  railroad 
act,  and  cattle  get  upon  the  track  and  are  injured  by  its  engines 
and   cars,  the  corporation   is   liable   to   the   owner   in    damages, 


g84  ^^^^'   0^  FENCES. 

altliongli  lie  is  not  an  adjoining  proprietor,  and  it  does  not  appear 
how  or  wlience  the  cattle  came  upon  the  road.  And  it  seems  that 
a  railroad  corporation,  which  omits  to  comply  with  the  statute  as 
to  erecting  and  maintaining  fences  and  cattle-guards,  is  liable  to 
the  oM-ner  of  cattle  which  stray  upon  the  track  from  an  adjoining 
close,  or  the  highway  crossing  it,  and  are  there  injured  by  the 
engines  of  the  company,  although  they  were  not  lawfully  in  such 
close  or  highway.  In  such  case,  therefore,  the  mere  negligence 
of  the  owner,  in  permitting  his  cattle  to  stray  upon  the  land  of 
another  adjoining  the  railroad,  or  to  run  at  large  in  the  highway 
which  crosses  it,  is  no  defense  to  the  corporation.  And  it  was 
declared  in  the  case  before  the  court,  that  the  duty  imposed  by 
the  statute  upon  railroad  corporations  is  not  limited  to  the  main- 
tenance of  fences  and  cattle-guards,  as  against  the  animals  of 
adjoining  occupants,  or  those  lawfully  in  the  highway  {Corwin  v. 
The  New  York  and  Erie  Railroad  Company,  13  N.  Y.  i?.,  42). 
The  Supreme  Court  of  the  State  had,  previously  to  this  decision, 
expressed  a  doubt,  as  to  whether  a  railroad  company,  upon  wdiich 
it  is  obligatory  to  make  side  fences,  which  it  had  omitted  to  con- 
struct, is  responsible  for  the  destruction  of  horses  that  had 
wandered  upon  its  track  from  the  field  of  an  adjacent  owner,  into 
wliich  they  had  escaped  from  the  land  of  their  owner,  through  a 
defective  fence  which  the  adjacent  owner  was  bound  to  make 
{UiuJerhill  v.  The  New  York  and  Harlem  Railroad  Company, 
21  Barh.  R.,  489).  But  the  question  would  now  seem  to  be  set 
at  rest  by  the  Court  of  Appeals  in  the  decision  of  the  case  of  Cor- 
win V.  The  New  York  a7id  Erie  Railroad  Comp)any^  supra. 

The  Supreme  Court  of  the  State  has  held  that,  under  the  pro- 
vision of  the  statute  requiring  railroad  companies  to  erect  and 
maintain  fences  on  the  sides  of  their  roads,  if  a  fence  is  thrown 
down,  or  blown  down,  or  becomes  defective  from  any  cause,  it 
becomes  the  duty  of  the  railroad  company  to  restore  it  within  a 
reasonable  time.  And  though  a  fence  is  thrown  down,  and  an 
opening  left  therein,  by  a  trespasser,  yet  if  it  is  suffered  to  remain 
in  that  condition  an  unreasonable  length  of  time,  a  jury  has  a 
rio'ht  to  find  that  this  is  negligence  in  the  railroad  company.  And 
it  was  further  held  that,  when  a  railroad  company  is  in  default, 
for  not  repairing  a  gap  in  a  fence,  and  a  horse  passes  through  the 
gap,  upcjn  the  railroad  track,  and  is  there  killed,  the  mere  negli- 
gence of  the  owner  in  permitting  the  horse  to  run  at  large  in  a 


STATUTES    OF  N.   Y.   RESPECTING   FENCES.  385 

highway,  or  to  trespass  upon  a  neighbor's  premises,  will  not  con- 
stitute a  defense  to  an  action  against  the  railroad  company,  to 
recover  the  value  of  the  horse  {Munch  v.  The  New  York  Central 
Railroad  Company,  29  Barl.  R.,  647 ;  and  vide  Chapman  v. 
The  New  York  Central  Railroad  Company,  33  N.  Y.  R.,  309). 

The  Supreme  Court  has  also  held  that  the  sections  of  the  general 
railroad  act,  providing  that  the  corporations  subject  to  the  act 
shall  erect  and  maintain  fences  on  the  sides  of  their  road,  etc.,. 
make  no  distinction,  in  terms,  in  respect  to  this  duty,  between 
cases  in  which  the  lands  of  the  corporation,  occupied  by  the  road, 
were  obtained  by  agreement  with,  and  conveyance  from,  the 
owners,  and  those  in  which  title  was  acquired  by  the  compulsory 
proceedings  authorized  by  the  act,  and  that  none  was  intended  byr 
the  Legislature  {Clarke  v.  The  Rochester,  Lockport  and,  Niagara^ 
Falls  Railroad  Company,  18  Bay-b.  R.,  350).  And  the  same 
court  has  also  held  that,  in  an  action  against  a  railroad  company 
for  negligence  in  running  over  and  killing  a  horse,  M'here  the 
injury  is  alleged  to  have  occurred  in  consequence  of  a  defect  in  a. 
fence  which  the  defendant  was  bound  to  maintain,  if  there  is  any 
evidence  that  the  fence  was  insufficient  and  defective,  and  that  the 
defendant's  agents  knew  or  had  notice  of  it,  and  that  the  horse 
got  .upon  the  track  by  means  of  such  defect,  it  is  erroneous  to 
nonsuit  the  plaintiff.  And  it  was  accordingly  held  that,  if  in  such 
a  case,  there  is  any  evidence  that  the  horse  got  upon  the  railroad 
track  over  or  through  a  fence  which  the  defendant  was  bound  to 
maintain,  it  should  be  submitted  to  the  jury  ^  but  not  so  of  evi- 
dence that  possibly  the  horse  so  got  upon  the  track.  If  there  is 
no  evidence  that  the  horse  got  upon  tlie  track  in  the  manner 
alleged,  of  course,  the  plaintiff  should  be  nonsuited  {Morrison  v. 
The  New  York  and  New  Haven  Railroad  Company,  32  Barh. 
R.,  568). 

It  has  been  before  shown  that  the  lessee  of  a  railroad,  while.- 
operating  it,  is  liable  for  damage  to  cattle  by  reason  of  defective 
fences  which  the  lesso-r  is  bound  to  maintain  ;  but  the  Supreme- 
Court  has  held  that,  where  a  railroad  company,  by  an  arrange- 
ment with  another  company,  run  their  cars  over  the  road  of  the 
latter  company,  and  an  injury  is  sustained  by  an  individual,  by  the- 
killing  of  his  cow  by  the  locomotive,  which  injui'y  occurs  not  from 
any  negligence  in  the  running  of  the  cars,,  but  in  consequence  of 
the  omission  to  erect  cattle-guards  or  fences,,  the  eon^pany  ownhiig 
49 


386  ^-4Tr   OF  FENCES. 

the  locomotive  is  not  liable.  And  in  the  same  case,  it  was  held 
that,  where,  in  an  action  against  a  railroad  company  to  recover 
damages  for  an  injury  to  the  plaintiff  's  property,  the  complaint 
merely  alleges  that  the  injury  was  occasioned  by  the  neglect  to 
construct  cattle-guards,  a  recovery  cannot  be  had  for  an  omission 
to  hwWdi  fences  {Parker  v.  The  Rensselaer  and  Saratoga  Railroad 
Company,  16  Barh.  R.,  315). 

The  case  of  Parker  v.  T/w  Rensselaer  and  Saratoga  Railroad 
Company,  has  never  been  expressly  overruled,  but  its  soundness 
has  been  questioned  in  a  late  case  before  the  same  court,  in  which 
the  judge,  who  delivered  the  opinion,  regarded  the  construction 
of  the  statute  given,  as,  to  say  the  least,  a  very  strict  construction, 
of  a  remedial  statute,  and  not  quite  in  the  spirit  or  views  of  con- 
.-struction  given  by  the  Court  of  Appeals,  in  Tracy  v.  The  Troy 
•and  Boston  Railroad  Company  (38  N.  Y.  R.,  437),  and  the 
judge  was  satisfied  that  the  rule  adopted  in  the  latter  case  was 
sounder  than  that  of  the  former,  especially  when  applied  to  a 
remedial  statute  induced  by  public  considerations  {Burchjleld  v 
The  Northern  Central  Railway  Company,  57  Barh.  R.,  589,  591). 
Besides,  the  case  of  Parker  v.  The  Rensselaer  and  Saratoga 
Railroad  Company,  was  decided  before  the  act  of  1861:,  which 
extended  the  provisions  of  the  general  statute  so  as  to  create  a 
like  liability  against  the  lessees  of  any  railroad,  including  not  only 
other  railroad  companies  wdio  may  be  made  such  lessees,  but  any 
person  or  persons,  who  may  be  such  lessee  or  lessees,  the  terms  of 
■which  have  been  hereinbefore  given,  and  if  the  defendant  in  the 
ease  could  be  regarded  as  the  lessee  of  the  Saratoga  and  Schenec- 
tady railroad  on  which  the  damage  was  done,  of  course,  it  would 
be  liable  as  the  law  now  stands.  In  the  case  of  BurcTifield  v. 
The  Northern  Central  Railroad  Company,  the  defendant  was 
running  a  railroad  belonging  to  another  corporation,  and  using  it 
for  the  ordinary  purposes  of  a  railroad,  for  its  own  benefit,  under 
and  by  virtue  of  a  written  agreement  with  the  owner,  and  for  a 
period  only  fixed  by  the  terms  of  a  lease  made  to  another  corpor- 
ation, and  assigned  to  the  defendant,  who  agreed  to  pay  the  rent 
reserved  in  the  lease.  The  court  held  that  the  defendant  was  the 
lessee  of  such  road,  within  the  meaning  and  intent  of  the  general 
railroad  act  of  1850,  and  the  act  of  1864,  amending  the  same  and 
extending  its  provisions  to  the  lessees  of  any  railroad.  And  that 
as  such  lessee,  it  was  liable  for  the  value  of  a  cow  killed  by  ita 


STATUTES   OF  K   Y.    RESPECTING   FEXCES.  387 

engine  upon  tlie  track,  in  consequence  of  the  defendant's  neglect 
to  maintain  fences  and  cattle-guards  as  required  by  the  statute. 
It  was  declared  that  the  term  lessees,  in  the  statute,  is  to  have  such 
construction  as  was  intended  by  the  Legislature,  to  meet  the  then 
known  and  existing  condition  of  things;  to  meet  the  case  otpar- 
ties  using  a  road,  as  the  substitute  of  the  owners,  ana  exercising 
the  rights  of  owners,  under  some  right  or  permission  tor  a  con- 
sideration to  be  paid  to  the  owners. 

The  present  Supreme  Court  of  the  State  held,  at  an  early  day, 
that  the  failure  of  a  railroad  company  to  erect  and  maintain  fences 
on  the  sides  of  their  road,  as  required  by  the  general  railroad  act 
of  1848,  does  not  make  the  company  liable  for  damages  to  cattle 
^vhich  have  entered  on  the  railroad  from  the  owner's  land,  through 
the  want  of  a  fence  which  the  owner  was  bound  to  build  and  keep 
in  repair.     And  that,  notwithstanding  the  general   railroad  act 
requires  the  railroad  company  to  erect  and  maintain  on  the  sides 
of  its  road  fences  of  the  height  and  strength  of  a  division  fence,  as 
required  by  law,  yet  the  owner  of  the  land  through  winch  the 
road  passes,  who  has  agi^eed  with  the  company,  for  a  valuable  con- 
sideration received,  to  erect  and  maintain  such  fence  on  his  own 
land,  adjoining  such  railroad,  and  who  has  neglected  to  tulhll  said 
ao-reement,  cannot  maintain  an  action  against  the  company  for  a 
cow  killed  by  the  company's  engine  while  passing  on  said  road, 
which  cow  escaped  on  to  the  road  through  a  want  of  fence  winch 
the  plaintiff  was  bound  to  build  and  keep  in  repair.     And  it  was 
held  in  the  case  that  a  parol  agreement  between  the  owners  ot  the 
adjoining  land  that  one  of  them  will,  for  an  adequate  considera- 
tion, erect  and  keep  up  the  division  fence  between  them,  is  not 
within  the  statute  of  frauds,  which  renders  void  an  agreement  not 
to  be  performed  mthin  a  year  {Talmadge  v.  The  Rensselaer  and 
Saratoga  Railroad  Company,  13  Barl.  R.,  493).     And  the  same 
court  recognized  the  same  doctrine  in  a  later  case,  m  which  it  was 
held  that  where  a  fence,  between  a  railroad  and  the  adjoniing 
farms,  which  it  is  the  duty  of  the  landowners  to  keep  in  repair,  is 
destroyed  by  fire  communicated  by  the  engines  in  use  upon  the 
railroad,  and  the  railroad  company  neglects  to  rebuild  such  ience, 
this  will  not  render  the  company  liable  for  the  value  of  a  horse 
which  strays  upon  the  track  of  the  road  from  an  adjoining  pasture, 
where  it  is  kept,  through  the  open  fence,  and  is  killed  by  the 
engine   {Terry  v.  The  Nexo  York  Central  Railroad  Company 


388  LAW   OF  FEACES. 

22  Barh.  B.,  574).  But  tliese  two  cases  may,  perliaps,  be  con- 
sidered as  substantially  overruled  by  the  decision  of  the  case  of 
Shepard  v.  The  Bvffalo,  New  Yor'k  and  Erie  Railroad  Company, 
liereinbefore  referred  to. 

In  a  case  just  reported,  which  was  decided  by  the  Supreme 
Court  in  September,  1873,  it  appeared  that  the  plaintiffs  cattle 
got  through  a  fence  bordering  the  defendant's  railroad  on  to  tho 
track,  and  were  killed.  The  defendant  had  covenanted,  in  the 
deed  of  its  roadway,  at  the  point  of  the  accident,  to  "make  and 
maintain  good  and  sufficient  fences  on  both  sides"  of  the  strip  of 
land  taken.  Tlie  court,  at  nisi  prius,  refused  to  charge  the  jury 
"  that  a  compliance  by  defendant  with  the  statute  as  to  fences 
exonerated  it  from  liability,  irrespective  of  the  covenant  in  the 
deed."  The  court,  at  General  Term,  held  this  to  be  error,  and 
reversed  the  judgment  in  favor  of  the  plaintiff  on  the  verdict  of 
the  jury,  and  granted  a  new  trial;  declaring  that  the  performance 
of  the  statute  by  the  defendant  was  the  performance  of  the  cove- 
nant, and  that  the  jury  should  have  been  so  instructed  {Thompson 
V.  The  Neio  York  and  Harlem  Railroad  Compamj,  1  N.  Y. 
Supreme  Court  R.,  411).  This  is  correct  doctrine  ;  but  it  is  diffi- 
cult to  see  how  the  refusal  of  the  judge  to  charge  in  the  language 
requested  could  have  misled  the  jury.  What  he  did  charge  was 
substantially  what  the  court  in  banc  declares  the  law  to  be. 

The  Supreme  Court  lield,  in  January,  1851,  that,  under  the 
general  railroad  act  of  1850,  there  was  no  obligation  imposed  upon 
a  railroad  corporation,  so  far  as  its  servants  employed  upon  its 
engines  are  concerned,  to  erect  and  maintain  fences  on  the  sides 
of  the  road,  so  as  to  render  such  corporation  liable  for  an  injury 
happening  to  a  servant  thus  employed,  in  consequence  of  its  neg- 
lect to  fence  against  cattle ;  tliat,  although  fences  along  the  line 
of  railroads,  protecting  the  track  from  cattle  on  adjoining  lands, 
are  an  important  measure  of  necessity,  both  to  the  agents  and 
servants  of  the  companies  and  to  the  public,  yet,  in  the  absence 
of  a  legislative  provision,  making  their  erection  an  absolute  duty 
to  the  public,  the  courts  cannot  properly  impose  it  as  a  duty,  and 
liold  its  non-performance  to  be  negligence  ^;er  se^  disregarding  all 
other  circumstances.  And  it  was  held  that,  under  such  general 
railroad  act  of  1850,  requiring  all  railroad  corporations  to  erect 
and  maintain  fences  on  the  sides  of  their  road,  and  declaring  that, 
in  case  of  omission  to  do  so  by  any  corporation,  the  corporation 


STATUTES   OF  K.   V.    BESPECTING   FEXCES.  389 

and  its  agents  shall  be  liable  for  all  damages  which  shall  be  done 
by  their  agents  or  engines  to  cattle^  horses  or  other  animals 
thereon,  the  duty  is  one  in  respect  to  the  owners  of  such  animals 
only  ;  and  that  the  liability  prescribed  is  all  that  is  incurred  by  a 
violation  of  it  {Langlois  v.  The  Buffalo  and  Rochester  Railroad 
Company,  19  Barh.  R.,  364).  This  action  was  brought  to  recover 
for  personal  injuries  caused  by  an  engine  being  thrown  from  the 
track  by  reason  of  cattle  straying  upon  the  track  for  want  of  a 
fence  that  the  defendant  was  bound  to  maintain ;  and  probably 
none  of  the  amendments  of  the  general  railroad  act  provide  for 
such  a  case;  certainly,  there  is  not  at  present  any  legislative  pro- 
vision making  the  maintenance  of  fences  along  the  sides  of  rail- 
roads an  absolute  duty  to  the  public,  although  the  duty  is  enjoined  ; 
but  the  damages  recoverable  in  ease  of  neglect  seem  to  be  confined 
to  those  for  injuries  to  cattle  and  other  animals  on  the  road. 

It  was  observed  that  the  statute  provides  that,  until  railroad 
corporations  construct  fences  on  the  sides  of  tlieir  road,  they  and 
their  agents  are  made  liable  for  all  damages  which  shall  be  done 
by  their  agents  or  engines  to  cattle  and  certain  other  animals  upon 
the  road.  The  Supreme  Court  of  the  State  has  held  that,  where 
the  corporation  is  liable  under  this  provision,  its  engineer  in 
charge  of  the  engine  at  the  time,  and  the  brakeman  employed  by 
him,  are  liable  jointly  with  the  company,  and  that  all  three  are 
severally  liable  {Stiydam  v.  Moore,  8  Barh.  R.,  358).  Hand,  J., 
dissented  from  the  judgment  in  this  case,  on  the  ground  that  the 
ao-ents  or  servants  of  a  railroad  company  could  not  be  made  liable 
for  an  injury  not  occasioned  by  any  fault  of  theirs.  But  the  doc- 
trine of  the  case  has  been  several  times  sanctioned  by  the  Court 
of  Appeals,  aiLd  it  may  be  regarded  as  good  law  (  Vide  Bruff'  v. 
Mali,  36  JV.  r.,  200,  205  ;  Fhelj)s  v.  Wait,  30  ih.,  787-789  ;  Cor- 
wln  V.  The  New  York  and  Erie  Railroad  Company,  13  ih.^ 
42,  50). 

Thus  much  for  the  law  relating  to  fences  along  the  sides  of  rail- 
roads in  the  State,  and  the  statement  is  thought  to  embrace  and 
cover  the  whole  subject. 


390  -^^^   0^  FENCES. 


CHAPTER  XXXIII. 

STATUTES    OF    THE    SEVERAL    STATES    RESPECTING   FENCES LAWS    OF 

NEW    YORK RULES    RELATING      TO      ENCROACHMENTS    BY    FENCES 

UPON    HIGHWAYS FENCE-VIEWERS    AND   THEIR    DUTIES  AND    POW- 
ERS  SOME      POINTS      RELATING      TO      FENCES,      MISCELLANEOUSLY 

STATED FENCES    IN    THE    CITY    OF    NEW    YORK IMPOUNDING    OF 

ANIMALS  TRESPASSING  UPON  FENCED  INCLOSURES. 

Respecting  encroachments  by  fences  upon  highways,  the 
statute  provides,  that  in  every  case  where  a  highway  shall  have 
been  laid  out  or  ascertained,  described  and  entered  of  record  in 
the  town  clerk's  office,  and  the  same  has  been  or  shall  be  encroached 
upon  by  fences  erected  by  the  occupant  of  the  land  through  or 
by  which  such  highway  runs,  the  commissioners  of  highways  of 
the  town  shall,  if  in  their  opinion  it  be  deemed  necessary,  order 
such  fences  to  be  removed,  so  that  such  highway  may  be  of  the 
breadth  originally  intended.  The  commissioners  making  the 
order  must  cause  the  same  to  be  reduced  to  writing  and  signed. 
They  are  required  also  to  give  notice  in  writing  to  the  occupant 
of  the  land  to  remove  such  fences  within  sixty  days.  Every  such 
order  and  notice  must  specify  the  breadth  of  the  road  originally 
intended,  the  extent  of  the  encroachment  and  the  place  or  places 
in  which  the  same  shall  be  (1  R.  S.,  Fart  1,  ch.  16,  tit.  1,  art.  5, 
§  103,  as  amended  hy  Laios  of  1^70,  ch.  125). 

The  present  Supreme  Court  of  the  State  has  lield  that,  where  a 
public  highway  originally  laid  out  six  rods  in  width,  was  fenced 
only  four  rods  wide,  and  had  been  used  as  thus  fenced  for  thirty 
years,  and  there  was  no  evidence  that  the  public  had  suffered  any 
annoyance  or  inconvenience  from  the  fences,  the  fences  were  not 
a  public  nuisance,  which  could  be  abated  as  such,  by  tlie  commis- 
sioners of  highways.  And  it  was  further  held  that,  where  a  sim- 
ple encroachment,  not  constituting  a  public  7iuisanGe,  has  existed 
in  a  highway  for  twenty  years,  the  premises  taken  by  the  encroach- 
ment cease  to  be  a  part  of  the  highway,  and  the  landowner, 
under  such  circumstances,  caimot  be  disturbed  in  his  possession 
without  making  him  just  compensation.  Proceedings,  therefore, 
under  this  statute  can  not  be  sustained  in  such  a  case  {Peckham 
V.  Henderson,  27  Ba?^b.  12.,  207).  The  old  Supreme  Court  of  the 
State,   however,  had   held  that   the   statute  authorizing   c-ouunis- 


STATUTES   OF  X.   Y.    RESPECTING   FENCES.  S91 

sioners  of  highways  to  order  the  reinoval  offences  by  the  erection 
of  which,  highways  have  been  encroached  upon,  does  not  abrogate 
the  common-Law  remedy  of  ahatement  of  nuisance  by  the  mere 
act  of  individuals,  or  abolish  the  proceeding  by  indictment ;  that 
is  to  say,  the  remedy  given  by  the  statute  would  appear  to  be  cumu- 
lative. And  the  court  held  that  the  object  of  the  statute 
seemed  to  have  been  to  provide  a  remedy  in  doubtful  or  question- 
able cases  {Wetmore  v.  Tracy,  14  Wend.  R.,  250).  The  doctrine 
of  this  case  is  doubtless  correct,  but  it  is  not  every  encroachment 
upon  a  highwa}^  by  fences,  that  will  amount  to  a  nuisance  {How- 
ard V.  Eohlins,  1  Lans.  E.,  63) ;  and  where  it  does  not,  the  only 
remedy  would  seem  to  be  the  one  pointed  out  by  the  statute, 
although  when  the  encroachment  by  fences  amounts  to  an  obstruc- 
tion of  the  highway,  the  common-law  remedy  may  be  pursued. 
The  case  of  \Vet7n0rc  v.  Tracy  was  one  in  which  the  encroach- 
ment amounted  to  a  nuisance,  and  the  removal  of  the  fence  in 
question  was  clearly  justified  by  necessity.  But  the  present 
Supreme  Court  of  the  State  has  expressly  held  that  a  mere 
encroachment  on  a  highway,  by  a  fence,  will  not  authorize  the 
removal  of  the  fence  by  an  individual,  unless  it  hinders,  impedes 
or  obstructs  the  use  of  the  road  by  the  public ;  and  further,  that 
an  encroachment  of  a  fence  upon  the  highway  is  not  a  public 
nuisance,  so  as  to  authorize  an  individual  to  abate  it,  unless  it 
interferes  with  the  use  of  the  road  by  the  public.  It  was  declared 
however,  that,  if  the  encroachment  rendered  the  passage  over  the 
road  less  convenient  or  safe  than  it  would  have  been,  but  for  the 
encroachment,  the  owner  of  the  fence  would  be  liable  to  an 
indictment  for  a  nuisance  [Ilarrower  v.  Retson,  37  Barh.  R.,  301). 
The  annoyance  to  the  public  by  the  fence  must  be  of  a  real  and 
substantial  nature,  or  an  indictment,  probably,  will  not  lie  (1 
Russell  on  Grimes,  318  ;  Griffith  v.  McCullum,  46  Barh.  R., 
561).  But  if  the  fence  encroaches  in  the  least,  it  may  be  removed 
by  proceedings  under  the  statute,  as  the  public  is  entitled  to  the 
whole  width  of  the  road. 

The  Court  of  Appeals  of  the  State  have  held  that,  where  a 
board  of  trustees  of  an  incorporated  village  are  invested  with 
authority  "  to  exercise  the  powers  and  duties  of  commissioners  of 
highways  of  towns  within  tlie  limits  of  the  village,  etc.,  so  far  aa 
these  powers  and  duties  are  consistent  with  other  parts  of  the  act, 
and  are  applicable  to  the  village,"  and  where  there  is  no  provision 


392  -^-4"'   OF  FENCES. 

in  the  act  requiring  such  board  to  notify  proprietors  to  remove 
structures  encroaching  upon  tlie  streets  of  the  village,  such  board 
may  proceed  to  remove  such  structures  without  giving  sixty  days' 
notice  as  is  required  by  commissioners  of  highways  ( Walker  v. 
Cay  wood,  31  M.  Y.  R.,  51). 

It  has  been  held  by  the  old  Supreme  Court  of  the  State,  that  in 
a  proceeding  under  the  statute  by  commissioners  of  highways  for 
the  removal  of  an  encroachment  upon  a  road  by  fences,  the  order 
and  notice  must  describe  the  place  and  extent  of  the  encroach- 
ment with  accuracy  and  precision,  and  specify  the  breadth  of  the 
road  as  originally  intended.  It  was  accordingly  held,  in  the  case, 
that  an  order  and  notice  describing  the  encroachment  as  of  "  the 
average  width  of  one  rod  or  upwards,^''  was  insufficient,  and 
further,  that  a  notice  directing  the  removal  of  the  fence,  "*o  that 
the  highway  might  he  of  the  hreadth  originally  intended^''  with- 
out stating  what  that  breadth  was,  was  not  good  under  the  statute 
{^Lott  V.  The  Cornnn8sio7iers  of  Highways  of  Bush,  2  IlilVs  R., 
472).  And  in  an  earlier  case  before  the  same  court,  it  was  held 
that,  when  a  statute  presci'ibes  the  form  of  an  order  or  other 
summary  proceeding,  it  must  be  followed  as  far  forth  as  is  con- 
sistent with  the  nature  and  exigency  of  the  particular  proceeding. 
It  was  accordingly  held,  that  an  order  for  the  removal  of  fences 
made  by  two  commissioners  in  the  case  of  an  encroachment  of  a 
higliway  was  void,  it  not  appearing  on  the  face  of  the  order  that 
the  third  cummission-er  was  duly  notified  to  attend  the  meeting  of 
the  board,  and  apprised  of  the  purpose  for  which  he  was  required 
to  attend  {Fitch  v.  The  Commissioners  of  Ilighioays  of  Kirkland, 
22  ^Yend.  R.,  132  ;  hut  vide  Tucker  v.  Rankin,  15  Barh.  R., 
471,  481). 

If  the  fences  encroaching  upon  the  highway  are  not  I'emoved 
•within  sixty  days  after  the  service  of  the  notice  specified,  the 
statute  provides  that  the  occupant  to  whom  the  notice  shall  be 
given  shall  forfeit  the  sum  of  fifty  cents  for  every  day,  after  the 
expiration  of  that  time,  for  which  such  fences  shall  continue  unre- 
moved ;  and  the  commissioners  of  liighways  may  remove  or  cause 
to  be  removed  such  encroachment,  and  the  occupant  of  the  premi- 
ses is  required  to  pay  to  the  commissionei'S  of  highways  all  rea- 
sonable charges  therefor,  to  be  collected  in  the  manner  provided 
in  the  act.  Bat  it  is  provided  by  the  statute  that  if  the  occupant 
to  whom  the  notice  is  given  shall,  within  five  days,  deny  such 


STATUTES   OF  N.   Y.    RESPECTING   FENCES.  §93 

encroachment,  tlie  commissioners,  or  some  one  of  them,  shall  apply 
to  a  justice  of  the  peace  of  the  county  for  a  precept,  directed  to 
any  constable  of  the  town,  to  summon  twelve  freeholders  thereof, 
to  meet  at  a  certain  day  and  place,  to  be  specified  in  such  precept, 
and  not  less  than  four  days  after  the  issuing  thereof,  to  inquire 
into  the  premises.  The  constable  to  whom  such  precept  sliall  be 
directed  must  give  at  least  three  days'  notice  to  the  commiss^ioners 
of  highways  of  the  town,  and  to  the  occupant  of  the  land,  cf  the 
time  and  place  at  which  such  freeholders  are  to  meet  (1  li.  S., 
Part  1,  ch.  16,  tit.  1,  art.  5,  §§  104,  105,  as  amended  hy  Laws  of 
1840,  ch.  300).  On  the  day  specified  in  the  precept,  the  jury  are 
to  be  sworn  by  the  justice,  well  and  truly  to  inquire  whether  such 
encroachment  has  been  made,  and  by  whom.  The  witnesses  pro- 
duced by  either  party  are  also  to  be  sworn  by  the  justice,  and  the 
jury  are  to  hear  the  proofs  and  allegations  of  the  party.  If  the 
jury  find  an  encroachment  has  been  made,  they  are  to  make  and 
subscribe  a  certificate  in  writing  of  the  same,  which  must  be  filed 
in  the  office  of  the  town  clerk.  The  occupant  of  the  land,  Aviiether 
the  encroachment  was  made  by  him  or  by  a  former  occupant,  is 
required,  in  such  case,  to  remove  his  fences  within  sixty  days  after 
the  filing  of  such  certificate,  under  the  penalty  before  stated ;  and 
he  is  also  required  to  pay  the  costs  of  the  inquiry;  and  if  the  same 
shall  not  be  paid  within  ten  days  the  justice  must  issue  a  warrant 
for  the  collection  of  the  same  of  the  goods  and  chattels  of  the 
delinquent.  But  if  the  jury  find  that  no  encroachment  has  been 
made  they  must  so  certify,  and  also  ascertain  and  certify  the 
damages  which  the  then  occupant  shall  have  sustained  b}'  the 
proceeding;  wliich,  together  with  the  costs  thereof,  must  be  paid 
by  the  commissioners,  and  the  same  is  made  a  charge  in  their 
favor  against  the  town  by  which  they  shall  have  been  elected.  No 
person  can  be  required  to  remove  any  fence  under  these  proceed- 
ings, except  between  the  first  day  of  April  and  the  first  day  of 
November  in  any  year  (1  R.  S.,  Part  1,  ch.  16,  tit.  1,  at't.  5,  §§  106- 
109). 

Where  commissioners  of  highways  serve  an  order  upon  a  person, 
directing  him  to  remove  a  fence,  which  it  is  claimed  is  an  encroach- 
ment on  the  highway,  and  such  person  denies  the  encroachment, 
his  denial,  in  order  to  arrest  the  further  action  of  the  commission- 
ers until  a  jury  has  been  summoned,  and  the  other  proceedings 
taken  as  required  by  law,  must  be  in  writing.  The  statute  does 
50 


394  LAW  OF  FEXCES. 

not  in  terras  require  the  denial  to  be  in  writing ;  but,  npon  prin- 
ciple and  authority,  it  must  be  so  in  order  to  be  legal  and 
eftectual  {Lane  v.  Gary,  19  Barh.  B.,  537). 

It  seeras  that,  in  a  proceeding  under  this  statute,  the  justice 
who  issues  the  precept  for  the  jury  has  no  power  to  pass  upon  the 
qualifications  of  the  persons  returned  as  jurors  {Png^ey  v.  Ander- 
son, 3  Wend.  M.,  468).  But  where  a  justice  of  the  peace,  upon 
the  application  of  commissioners  of  liighways,  issues  a  precept  to 
summon  twelve  freeholders  for  the  purpose  of  inquiring  into  an 
alleged  encroachment  upon  a  highway,  and  the  jury  thus  sum- 
moned meet,  and  find  that  the  persons  complained  of  have 
encroaclied  on  the  higliway ;  and  they  make  a  certificate  in 
writing,  stating  the  particulars  of  the  encroacliment,  as  required 
by  the  statute,  the  justice  possesses  all  needful  authority  to  decide 
upon  the  ainoiint  of  the  costs  of  the  inquiry,  as  incidental,  and 
absolutely  necessary,  to  enable  him  to  issue  the  warrant  for  the 
collection  of  such  costs,  which  the  law  requires  him  to  issue;  and 
the  act  of  the  justice  in  liquidating  the  amount  of  such  costs  is 
judicial,  and  he  is  not  liable  therefor  in  a  civil  suit  (  Voorhees  v. 
Martin.,  12  Barh.  B.,  508).  The  certificate  of  the  jury,  finding  an 
encroachment  njjon  a  highway,  must,  in  the  language  of  the 
statute,  state  the  particulars  of  such  encroachment,  alleging  the 
encroachment  to  exist  according  to  the  last  survey  of  a  person 
named  in  the  certificate,  without  annexing  the  survey,  or  referring 
to  it  as  on  file  in  a  public  ofiice,  is  not  a  compliance  with  the  act. 
When  a  statute  prescribes  the  form,  the  very  words  of  an  order 
or  other  summary  proceeding,  those  words  must  be  used,  at  least 
as  far  as  they  can  be  applied  to  the  nature  and  exigency  of  the 
particular  proceeding  {Fitch  v.  2 he  Commissioners  of  Highways 
of  KirJdand,  22  Wend.  B.,  132).  Indeed,  none  of  the  proceed- 
ings under  this  statute  will  be  upheld,  unless  there  is  a  substantial 
compliance  with  the  form  of  procedure  prescribed,  as  a  safeguard 
against  unadvised  and  improvident  action  {The  People  v.  Williams, 
36  N.  Y.  B.,  441). 

In  respect  to  the  ofiice  of  fence-viewers,  in  the  State  of  New 
York,  the  assessors  and  commissioners  of  highways  elected  in 
every  town,  are  made  such  of  their  respective  towns,  by  the  sta- 
tute of  the  State  by  virtue  of  their  ofiices  (1  B.  S.,  Fart  1,  ch. 
11,  tit.  2,  art,  1,  §4).  The  duties  of  the  fence-viewers  to  settle 
disputes  in  respect  to  fences,  have  been   detailed  in  a  previous 


STATUTES    OF  N.    Y.    RESPECTING   FENCES.  895 

chapter,  and  to  enable  them  to  discharge  their  duties  the  more 
fullj,  the  statute  provides,  that  witnesses  may  be  examined  by 
them  on  all  questions  submitted  to  them  ;  and  either  of  them  may 
issue  subpoenaes  for,  and  administer  oaths  to  said  witnesses,  and 
each  fence-viewer  and  w^itness  thus  employed  is  entitled  to  one 
dollar  and  fifty  cents  per  diem.  Such  fence-viewers  or  a  majority 
of  them,  must  determine  what  proportion  thereof  shall  be  paid 
by  each  of  the  parties  interested  in  the  matter  of  the  fence  to  be 
adjusted,  and  they  must  reduce  their  determination  to  writing, 
and  subscribe  the  same  and  tile  it  in  the  office  of  the  town  clerk 
where  such  fence-viewers  shall  reside.  The  party  refusing  or  neg- 
lecting to  pay  such  fence-viewers,  or  either  of  them,  will  be  liable 
to  be  sued  for  the  same  with  costs  (1  JR.  S.,  Part  1,  ch.  11,  tit.  4, 
art.  4:,  §43,  as  amended  lij  Laws  ^y^lSee,  cli.  540,  §6).  The 
terms  of  the  statute  are  very  clear  and  explicit,  and  the  courts 
have  not  been  called  upon,  as  yet,  to  give  a  construction  to  any 
of  its  provisions,  excepting  in  respect  to  the  sufficiency  of  the 
determination  of  the  fence-viewers  in  the  cases  referred  to.  One 
case  having  a  remote  bearing  upon  this  point,  before  the  present 
Supreme  Court  of  the  State,  has  been  hereinbefore  referred  to  in 
which  it  was  held  that,  where  the  dispute  relates  to  the  value  of 
the  fence,  and  the  proportion  t/iereqf  which  one  party  should  pay 
to  the  other,  it  should  specify  such  sum,  and  an  action  will  lie  to 
recover  the  same  (Hewitt  v.  Watkins,  11  Barb.  li.,  409). 

The  existence  of  a  dispute  about  a  partition  fence  is  sufficient 
to  enable  the  fence-viewers  to  interfere  {Bryan  v.  Kortright,  4 
Johns,  i?.,  414).  But  in  an  action  to  recover  the  defendant's  pro- 
portion of  the  expenses  of  putting  up  a  partition  fence,  if  no  dis- 
pute had  existed  as  to  the  proportion,  a  decision  of  the  fence- 
viewers  need  not  be  shown.  And  in  such  a  case,  the  costs  and 
expenses  of  repairing  are  not  to  be  settled  by  the  fence-viewers. 
Parol  proof  of  a  written  notice  to  repair  is  held  to  be  sufficient 
in  such  cases  ( Willoughhy  v.  Carleton,  9  Johns.  B.,  136).  It 
seems  that  any  person  distraining  beasts  doing  damage-feasant 
upon  his  premises,  who  neglects  to  have  his  damages  appraised  by 
the  fence-viewers  within  the  statute  time,  forfeits  the  right  to 
detain  the  animals  for  the  damages,  and  the  owner  may  retake 
them.  The  statute  upon  the  subject  is  peremptory,  and  must  be 
complied  with,  or  the  party  loses  or  forfeits  his  right  to  detain  the 


396  ivlTF   OF  FENCES. 

animals   distrained,  and    the   owner  may   retake  tliem  {Hale  v. 
Clarl:,  19  Wend.  IL,  49S). 

An  interesting  case  came  before  the  courts  of  the  State,  several 
vears.au'o,  involving  the  powers  of  fence-viewers  under  the  stat- 
ute. Clark  and  Brown  owned  and  occupied  adjoining  lands. 
Clark's  oxen,  pasturing  in  his  lot  adjoining  Brown's,  from  defects 
in  Brown's  portion  of  the  division  fence,  got  into  Brown's  lot, 
where  corn  was  growing,  and  ate  so  much  of  it  that  they  died. 
The  fence-viewers,  being  called  in  by  Clark,  assessed  the  value  of 
the  oxen  as  damages  in  his  tavor.  It  was  held  by  the  Supreme 
Court,  that  the  damage  sustained  was  not  within  tlie  jurisdiction 
of  the  fence- viewers ;  that  the  damages  they  were  authorized  to 
determine  under  the  statute,  were  only  such  as  ordinarily  result 
from  defective  fences,  such  as  the  treading  down  and  destruction 
of  corn,  wdieat  and  other  crops,  and  grass.  But  the  court  declared 
that  the  judgment  of  tlie  fence-viewers,  if  they  keep  within  their 
jurisdiction,  is  conclusive.  The  decision  was  affirmed  by  the  Court 
of  Errors,  its  members  being  equally  divided.  Two  of  the  mem- 
bers of  the  court  who  delivered  opinions,  laid  down  the  rule  that, 
in  a  case  within  their  jurisdiction,  the  appraisement  was  merely 
evidence  of  the  amount  of  the  damage,  and  nothing  more,  and 
that  the  damage  could  not  be  recovered  by  action  on  the  certiii- 
cate.  The  late  chancellor  was  of  the  opinion  that  an  action  on 
the  case  could  not  be  sustained  ;  that,  under  the  statute,  the  cer- 
tificate of  the  appraisers  or  fence-viewers  was  conclusive  upon  the 
questions  of  damages  and  the  sufficiency  of  the  fence,  but  not  of  a 
previous  division  of  the  partition  fence  between  Brown  and 
Clark,  and  that  the  fence-viewers  had  jurisdiction  of  the  case. 
One  senator  was  inclined  to  agree  with  the  Supreme  Court,  as  to 
the  extent  of  the  authority  of  the  fence-viewers  in  appraising 
damages,  and  was  of  the  opinion  that  in  the  case  before  the  court, 
the  damages  sustained  by  Clark  were  not  recoverable  in  any  form 
{Clarh  V.  B7'0W7i,  18  Wend.  R.,  213).  This  case,  so  far  as  the  juris- 
diction of  the  fence-viewers  in  the  matter  of  the  damages  involved, 
is  now  of  no  practical  importance,  from  the  fact,  that  the  statute 
now  in  force,  restricts  the  remedy  of  the  injured  party  to  such 
damages  as  sliall  accrue  to  his  lands,  crops,  fruit-trees,  shrubbery, 
and  fixtures  connected  with  the  land  ;  but  the  ease  is  of  value  as 
showing  the  views  of  judges  upon  a  statute  in  the  terms  of  the 
one  in  force  when  it  arose,  and  as  an  adjudication  upon  the  effect 


STATUTES   OF  N.   Y.   RESPECTING   FENCES.  397 

of  the  judgment  of  the  fence-viewers  in  a  matter  of  which  they 
have  jurisdiction. 

Another  point  rehating  to  fences,  or  closely  connected  there- 
with, was  declared  by  the  old  Supreme  Court  of  the  State,  in  a  case 
in  which  it  was  held  that,  where  a  party  had  an  easement  in  the 
land  of  another,  namely,  the  right  to  cut  a  ditch  or  water-course, 
the  owner  of  the  land  had   the  right  to  erect  fences  across  the 
water-course,  and   that   if   the  other  nnnecessarily  or  wantonly 
removed  them  he  was  liable  in  damages,  and  that  the  owner,  for 
such  removal  of  the  fences,  was  entitled  to  recover,  though  no 
actual  damage  was  proved  ;  upon  the  ground  that  every  unauthor- 
ized entry  upon   the  land  of  another  is  a  tresjKiss,  lor  which  an 
action  lies  though  the  damages  be  merely  nominal  {Dixon  v.  Cloio, 
24:  Wend.  M.,  188).     It  has  been  recently  held  by  the  present 
Supreme  Court  of  the  State  that  the  general  rule  that,  where  a 
party  is  the  owner  of  personal  property  which  is  upon  the  land  of 
another,  the  former  cannot  commit  a  trespass  by  entering  and 
taking  it  away,  does  not  apply  to  that  entry  of  a  party  which  is 
necessary  to  enable  him  to  make  a  partition  fence  between  him 
and  an  adjoining  owner.     It  was  said  that  the  law  compels  each 
owner  to  make  his  portion ;  and  that  this  carries  with  it  the  right 
to  such  necessary  occupation,  for  the  time  being  as  is  required  to 
comply  with  such  legal  duty  {Carpenter  v.  Ilalsey,  60  Bark  i?., 
45).     And  it  may  be  added  that  still  another  point  has  been  set- 
tled by  the  courts,  not  as  being  peculiar  to  the  State  of  New  York 
on  account  of  its  statutory  policy,  but  independent  of  any  legisla- 
tive enactment;  which  is,  that  fencing  materials  on  a  farm,  which 
have  been  used  as  part  of  the  fences,  but  are  temporarily  detaclied, 
without  any  intent  of  diverting  them  from  their  use  as  such,  are  a 
part  of  the  freehold,  and  pass  by  a  conveyance  of  the  farm  to  a 
purchaser  {Goodrich  v.  Jones,  2  Jllirs  B..  142;  and  vide  Walker 
V.  Sherinmi,  20  Wend.  R.,  639,  640 ;  Bishop  v.  Bishop,  11  N.  Y. 
R.,  123, 125).     And  probably  the  same  rule  would  apply  in  respect 
to  'rails' which  were  placed  upon  a  farm,  with  the  design  of  being 
laid  up  into  fences  for  the  use  of  the  farm.     Doubtless,  in  such  a 
case,  the  fence  rails  would   be  regarded  as  fixtures  as  between 
grantor  and  grantee,  and  pass  by  a  conveyance. 

The  subject  of  fences  in  the  State  of  New  York  will  be  con- 
cluded by  a  brief  reference  to  the  law  regulating  the  subject  in 
the  city  of  New  York.     In  that  city  it  is  provided  by  statute  that 


398  -^^TT^  ^^  FENCES. 

tlie  common  council  shall  have  power  to  make  rules  and  regula 
tions  for  making,  amending  and  maintaining  as  well  partition 
fences  as  others,  in  the  oity,  as  such  common  council  shall  from 
time  to  time  judge  most  proper  and  convenient  {Laws  of  1813, 
ch.  35,  §  20;  2  E.  Z.,  134).  By  virtue  of  this  authority  the  com- 
mon council  of  the  city  have,  by  ordinance,  regulated  partition 
fences  and  walls.  The  ordinance  requires  partition  fences  to  he 
made  and  maintained  by  tlie  owners  of  land  on  each  side ;  and  if 
the  same  can  be  conveniently  divided,  each  party  is  required  to 
make  and  keep  in  repair  one-half  part.  All  disputes  respecting 
division  fences,  and  the  portions  to  be  made  and  kept  in  repair  by 
the  owners  respectively,  or  as  to  the  sufficiency  of  such  fences,  are 
to  be  settled  by  the  aldermen  and  assistant  aldermen  of  the  ward  in 
which  the  same  may  be  situated.  In  case  the  fence  cannot  be  con 
veniently  divided,  the  same  is  to  be  made  and  kept  in  repair  at 
the  joint  and  equal  expense  of  the  adjoining  owners.  All  outside 
or  boundary  fences,  and  all  fences  on  the  line  of  an^^  public  roac, 
street,  avenue,  or  alley,  must  be  five  feet  high  and  well  and  sub- 
stantially built,  so  as  to  pi-event  the  encroachment  of  cattle,  sheep, 
hogs,  and  other  animals.  In  case  of  the  neglect  of  one  adjoining 
owner  to  build  his  proportion  of  the  division  fence,  the  other  may 
build  it  at  the  expense  of  the  delinquent  {Revised  City  Ordinances^ 

ch.  31,  §§  1-12). 

It  will  be  observed  that  these  regulations  respecting  partition 

fences  in  the  city  of  New  York  are  substantially  the  same  as  those 
adopted  by  the  Legislature  for  other  parts  of  the  »State ;  so  that 
the  decisions  of  the  courts,  under  the  statutes  governing  the  sub- 
ject in  the  country,  may  be  consulted  in  similar  cases  arising  in 
the  city. 

There  is  a  statute  of  the  State  providing  for  the  distraining  and 
impounding  animals  found  trespassing  upon  lands  inclosed  by  a 
lawful  fence,  and  in  some  other  cases ;  and  the  proceedings  to  be 
had  under  the  statute  are  specifically  pointed  out  in  the  same 
enactment  (2  R.  S.,  Part  3,  ch.  8,  tit.  10). 


STATUTES   OF  3IAINE  RESPECTING   FENCES.  399 


CHAPTER  XXXIV. 

STATUTES  OF  THE  SEVERAL  STATES  KESPECTING  FENCES  — LAWS  OF 
MAINE  — THE  FENCE-VIEWERS  AND  THEIR  POWERS  AND  DUTIES  — 
RULES  RESPECTING  PARTITION  FENCES  —  RAILWAY  COMPANIES  TO 
FENCE  THEIR  ROADS —  DECISIONS  OF  THE  COURTS  UPON  THE  SUB- 
JECT-LAWS  OF  NEW  HAMPSHIRE  —  REGULATIONS  CONCERNING 
PARTITION  FENCES— CERTAIN  PROVISIONS  OF  THE  STATUTE  SIMILAR 
TO  THE  MAINE  STATUTES  —  DECISIONS  OF  THE  COURTS  ON  THE  SUB- 
JECT OF  FENCES. 

The  statutes  of  the  State  of  Maine  provide  for  the  election  of 
two  or  more  fence-viewers  at  the  annual  town  meetings  for  eacli 
town,  whose  duties  are  also  prescribed  by  statute  {Revised  Statutes 
of  1S71,  title  1,  chajjter  3,  §  10).  And  in  case  no  fence-viewers  are 
found  acting  for  reasons  stated  in  the  statute,  then  the  selectmen 
of  the  town  are  required  to  act  in  that  capacity  {R.  S.,  tit.  ch.  3, 

With  respect  to  what  are  legal  fences  in  the  State,  it  is  provided 
by  statute  that  all  fences  which  are  four  feet  high  and  in  good 
repair,    consisting   of  rails,   timber,   boards   or   stone-walls;  and 
brooks,  rivers,  ponds,  ditches  and  hedges,  or  other  things,  which 
in  the  judgment  of  the  fence-viewers  having  jurisdiction  thereof 
are   equivalent   thereto,  shall   be   accounted   legal   and  sufficient 
fences.     And  the  occupants   of  lands  inclosed   with   fences  are 
required  to  maintain  partition  fences  between  their  own  and  the  , 
adjoining  inclosures,  in  equal  shares,  while  both  parties  continue 
to  improve  them.     If  any  party  neglects  or  refuses  to  repair  or 
rebuild  any  such  fence,  the  aggrieved  party  may  complain  to  two 
or  more  fence-viewers  of  the  town  where  the  land  is  situated,  who, 
after  due  notice  to  such  party,  must  proceed  to  survey  it,  and  if 
they  determine  that  it  is  insufficient,  they  are  required  to  signify 
it  in  writing  to  the  delinquent  occupant,  and  direct  him  to  repair 
or  rebuild  it  within  such  time  as  tliey  shall  judge  reasonable,  not 
exceeding  thirty  days.     If  the  fence  is  not  repaired   or   rebuilt 
accordingly,  the  complainant  may  make  or  repair  it,  and   after 
notice  given  it  has  been  adjudged  sufficient  by  two  or  more  of  the 
fence-viewers,  and  the  value  thereof,  with  the  fence-viewers'  fees, 
certified  under  their  hands,  he  may  demand  of  the  occupant  oi 
owner  of  the  land,  where  the  fence  was  deficient,  double  the  value 


400  ^^'^  0}'   FEXCES. 

and  fees  tlins  ascertained;  and  in  case  of  neglect  or  refusal  to  p;ij 
the  same  for  one  month  after  demand,  he  may  recover  the  same 
by  an  action  on  the  case,  with  interest  at  the  rate  of  one  per  cent 
a  month,  and  if  the  delinquent  owner  or  occupant  repairs  or 
rebuilds  such  fence  without  paying  the  fees  of  the  fence  viewers, 
certified  by  them,  double  the  amount  thereof  may  be  recovered 
by  the  complainant  as  before  provided  {B.  S.,  tit.  2,  ch.  22,  §§  1— i). 

The  statute  of  Maine,  requiring  partition  fensjs  to  be  divided 
in  equal  halves,  does  not  require  that  the  portion  assigned  to  each 
owner  should  be  contiguous.  And  where  only  a  part  of  the 
line  of  a  partition  fence  is  in  dispute,  a  division  of  that  part  by 
the  fence-viewers,  without  noticing  the  part  not  in  dispute,  is  held 
to  be  legal,  under  the  statute  {Prescott  v.  Mudgeit,  1  iShej).  7?., 
423).  The  statute  in  relation  to  partition  fences,  authorizes  fence- 
viewers  to  assign  distinct  portions  of  the  dividing  line  to  tlie  par- 
ties, and  to  fix  the  time  witliin  which  the  fence  shall  be  built. 
Any  direction  beyond  this  is  simply  void,  and  does  not  invalidate 
their  acts,  so  far  as  they  had  authority  {Longley  v.  IHUon^  34 
Maine  R.,  332).  And  it  lias  been  held  that,  under  the  statute,  it 
is  necessary  that  the  portion  of  fence  belonging  to  a  delinquent 
owner,  should  first  be  adjudged  by  the  fence- viewers  insutficient 
or  defective,  and  that  the  owner  should  have  written  notice  from 
them  of  the  fact,  and  be  requested  in  writing  to  repair  or  rebuild 
it  M'ithin  the  proper  time,  in  order  to  entitle  the  adjoining  owner 
to  charge  him  with  the  expenses  of  rebuikling  or  repairing  it 
himself.  The  court  declared  that  the  main  objects  of  tlie  third 
section  of  the  statute  was  to  divide  the  fence  made  or  to  be 
erected,  and  assign  to  each  party  his  share ;  after  which,  the  rights 
and  duties  of  the  parties  are  to  be  regulated  by  the  other  parts  of 
the  statute.  And  it  was  observed  that  the  remedy  given  by  the 
statute  was  cumulative,  and  did  not  affect  the  common-law  remedy 
which  an  aggrieved  party  maj^  have  for  damages  sustained  by  neg- 
lect of  the  owner  of  fences  to  keep  them  in  such  repair  as  the 
statute  re(|uires  {Eames  v.  Patterson^  S  Greenl.  li.,  SI;  and  vide 
GoQch  V.  Stephenson^  13  Maine  7?.,  371). 

In  order  to  render  the  decision  of  fence-viewers,  in  respect  to 
the  erection  of  a  partition  fence  binding  and  conclusive  upon  the 
parties,  the  time  limited  bj^  them,  within  which  each  adjacent 
owner  shall  build  liis  part  of  the  fence,  must  be  definitely  fixed. 
It  has  been  held  that  a  recital   in   tlie  written  assiirnnient   tliat   a 


STATUTES   OF  MAINE  RESPECTIXG   FENCES.  401 

certain  owner  named  shall  build  the  portion  of  fence  assitjjneil  to 
hiin,  "within  twelve  days  from  the  date  of  receiving  notice  of  this 
assignment,"  is  not  sufficiently  definite  {Jones  v.  Tihhetts,  60' 
Maine  i?.,  557).  If  the  assignment  of  the  fence-viewers  as  to 
partition  fences  is  not  recorded  in  the  clerk's  office  in  accordance 
with  tlie  provisions  of  the  statute,  one  of  the  coterminous  pro- 
prietors cannot  maintain  an  action  against  the  other  for  double  tha 
expense  of  building  the  fence  {Ellis  v.  Ellis,  39  Maine  R.,  526) 

When   the  occupants   or   owners   of  adjacent    lands   disagree 
respecting  their  rights  in  partition  fences,  and  their  obligation  to 
maintain  them,  on  application  of  either  partj^,  two  or  more  fence- 
viewers  of  the  town  where  the  lands  lie,  after  reasonable  notice  to 
each   party,  may  in  writing  under  their  hands  assign  to  each  his 
share   thereof,  and   limit  the   time  in  whicii   each   shall  build  or' 
repair  his   part  of  the  fence,  not  exceeding  thirty  days.     The- 
assignment  may  be  recorded  in  the  town  clerk's  office,  when  it 
becomes  binding  upon  the  parties,  and  they  are  required  thereafter' 
to  maintain  their  part  of  said  fence.     If  such  fence  has  been  built 
and  maintained  by  the   parties  in  unequal  proportions,  and  the' 
fence-viewers  adjudge  it  to  be  good  and  sufficient,  they  may,  after' 
notice  as  aforesaid,  in  writing,  under  their  hands,  award  to  the 
party  who  built  and  maintained  the  larger  portion  the  value  of 
such  excess,  to  be  recovered  in  an  action  on  the  case  against  the' 
other  party,  if  not  paid  within   six  months  after  demand.     The 
parties  to  the  assigment  are  required  to  pay  the  fees  of  the  fence- 
viewers,  in  equal  proportions ;  and  if  either  neglects  to  pay  his- 
proportion  within  one  month  after  demand,  the  party  applying  tO' 
the  fence-viewers  may  pay  the  same,  and  recover  in  an  action  on^ 
the  case  of  the  delinquent  party  double  the  amount  of  his  propor- 
tion of  the  fees.     And  in  case  any  party  refuses  or  neglects  tO' 
build  and  maintain  the  part  of  the  fence  thus  assigned  him,  it  may 
be  done  by  the  aggrieved  party  ;  and  he  will  thereupon  be  entitled: 
to  the  double  value  and  expense  ascertained,  and.  to  be  recovered, 
as  provided  in  the  other  cases  stated  {R.  S.,  tit.  %.ch.  22,  §§  5,  6)j 

All  division  fences  are  required  to  be  kept  in  good,  repair 
throughout  the  year,  unless  the  occupiers  of  adjacent  lands  other- 
wise agree.  When,  from  natural  impediment,  in  the  opinion  of 
the  fence-viewers  having  jurisdiction  of  the  case,  it  is  impracticable: 
or  unreasonably  expensive  to  build  a  fence  on  the  true  line  between' 
the  adjacent  lands,  and  the  occupants  disagree  respecting  its  posi- 
51 


402  X^ir  OF  FENCES. 

tion,  on  api^Hcation  of  either  party,  as  in  other  cases  provided,  and 
after  notice  to  both  parties,  and  a  view  of  the  premises,  tlie  fence- 
viewers  may  determine,  by  a  certificate,  under  their  hands,  commu- 
nicated to  each  party,  on  which  side  of  the  true  line,  and  at  what 
distance,  or  whether  partly  on  one  side  and  partly  on  the  other, 
and  at  what  distances,  the  fence  shall  be  built  and  maintained,  and 
in  what  proportions  by  each  party ;  and  either  may  have  the  same 
remedy  against  the  other  as  if  the  fence  was  on  the  true  line. 
And  where  adjacent  lands  have  been  occupied  in  common,  with- 
out a  partition  fence,  and  either  party  desires  to  occupy  his  in 
severalty,  or  where  it  is  necessary  to  make  a  feiice  running  into 
the  water,  and  the  parties  liable  to  build  and  maintain  it  disagree, 
either  party  may  have  the  line  divided  in  the  same  manner  as  in 
the  other  cases  provided,  except  that  the  fence-viewers  may  allow 
a  longer  time  than  thirty  daj^s  for  building  the  fence,  if  they  think 
proper,  having  regard  to  the  season  of  the  year.  In  otlier  respects 
the  remedy  of  the  aggrieved  party  is  the  same  as  in  the  other  eases 
referred  to  {R.  S.,  tit.  2,  ch.  22,  §§  7-9). 

Where  one  party  ceases  to  improve  his  land,  or  lay  open  his 
■inclosure,  he  must  not  take  away  any  part  of  his  partition  fence 
adjoining  the  next  inclosure  improved,  if  the  owner  or  occupant 
thereof  will  pay  therefor  what  two  or  more  fence-viewers,  on  due 
notice  to  both  parties,  determine  to  be  its  reasonable  value.  And 
where  any  land  which  has  been  uninclosed  is  afterward  inclosed, 
or  used  for  pasturing,  its  occupant  or  owner  is  required  to  pay  one- 
half  of  each  partition  fence  on  the  line  between  his  land  and  the 
inclosure  of  any  other  occupant  or  owner ;  and  its  value  must  be 
ascertained  by  tw^o  or  more  of  the  fence-viewers  of  the  town  where 
such  fence  stands,  if  the  parties  do  not  agree,  and  certified  in 
writing ;  and  after  the  value  is  thus  ascertained,  on  notice  to  each 
owner  or  occupant,  if  he  neglects  or  refuses  for  thirty  days,  after 
demand,  to  pay  it,  the  proprietor  of  the  fence  may  have  his  action 
on  the  case  for  such  value,  and  the  costs  of  ascertaining  it.  If  the 
line  on  which  a  partition  fence  is  to  be  made  is  to  be  divided,  is 
the  boundary  between  two  or  more  towns,  or  partly  in  one  town 
and  partly  in  another,  a  fence-viewer  must  be  taken  from  each 
itown  {R.  S.,  tit.  2,  ch.  22,  §§  10-12). 

Where  a  fence  between  the  owners  of  improved  lands  is  divided, 
'either  by  fence-viewers  or  by  written  agreement  of  the  parties, 
recorded  in  the  town  clerk's  ofiice  where  the  land  lies,  the  owners 


STATUTES   OF  MAINE  RESPECTING   FENCES.  403 

are  required  to  erect  and  support  it  accordingly ;  but  if  any  person 
lays  his  lands  common  and  determines  not  to  im})rove  any  part  of 
them  adjoining  such  fence,  and  gives  six  months'  notice  to  all 
occupants  of  adjoining  lands,  he  will  not  be  required  to  maintain 
such  fence  while  his  lands  so  lie  common  and  unimproved.  The 
foregoing  provisions  of  the  statute  are  declared  not  to  extend  to 
house  lots,  the  contents  of  which  do  not  exceed  half  an  acre;  but 
if  the  owner  of  such  lot  improves  it,  the  owner  of  the  adjacent 
land  must  make  and  maintain  one-half  of  the  fence  between  them, 
whether  he  improves  or  not ;  and,  further,  the  provisions  of  the 
statute  are  declared  not  to  make  void  any  written  agreement 
respecting  public  fences  {R.  S.,  tit.  2,  ch.  22,  §§  13,  14). 

In  order  that  the  decision  of  fence-viewers,  as  to  the  sufficiency 
and  value  of  a  fence  built  by  one  party,  may  be  binding  and  con- 
clusive on  the  other  part}'-,  so  that  an  action  will  lie  against  him 
under  the  provision  of  the  statute  to  recover  double  the  value  of 
the  portion  of  the  fence  assigned  to  him,  it  is  necessary  that  notice 
should  be  given  him  of  the  time  and  place  of  their  meeting,  that 
he  may  have  an  opportunity  to  appear  before  them  to  protect  his 
own  rights  in  the  matter  {Harris  v.  Stu7'divant,  29  Maine  IL, 
366).  And  the  Snpreme  Court  has  subsequently  held  that  an 
action  authorized  by  the  statute  to  recover  double  the  price  of 
building  the  defendant's  part  of  a  divisional  fence,  is  prematurely 
brought,  if  commenced  before  the  expiration  of  "  one  month  after 
demand."  And  it  was  further  held  that,  in  an  action  under  the 
statute,  indebitatus  assiwijjsit  will  not  lie  ;  it  should  be  an  action 
on  the  case,  setting  forth  all  the  facts  necessary  to  be  established 
to  fix  the  defendant's  liability  {Sanford  v.  Haskell,  50  Maine  R., 
86). 

It  has  been  declared  by  the  Supreme  Court  of  Maine,  that  the 
statute  of  the  State  respecting  fences,  is  merely  in  affirmance  of 
the  common  law ;  and  that  where  there  is  no  prescription,  agree- 
ment or  assignment,  under  the  statute,  whereby  the  owner  of 
land  is  bound  to  maintain  a  fence,  no  occupant  is  obliged  to  fence 
against  an  adjoining  close;  but  in  such  case,  there  being  no  fence, 
each  owner  is  bound,  at  his  peril,  to  keep  his  cattle  on  his  own 
close.  And  where  a  tenant  is  bound  by  prescription,  agreement, 
or  assignment,  under  the  statute,  to  maintain  a  fence  against  an 
adjoining  close,  it  is  only  against  such  cattle  as  are  rightfully  in 
that  close;  and  in  such  case,  if  the  fence  be  not  in  fact  made,  the 


404  i.4n'  OF  FENCES. 

owner  of  either  close,  thus  adjoining,  may  distrain  the  cattle 
escaping  from  the  adjoining  close,  and  not  rightfully  there.  The 
question  was  left  in  doubt,  under  a  queers  of  the  court,  as  to 
whether  or  not,  to  leave  wild  lands  unfenced  was  an  implied 
license  for  all  cattle  to  traverse  and  browse  them  {Little  v,  Lathrop, 
5  Greenl.  R.,  357).  And  it  has  been  more  recently  held  by  tho 
same  court  that  if,  upon  the  line  between  adjoining  lots  of  land, 
there  has  been  no  valid  division,  according  to  law,  for  the  main- 
tenance of  a  partition  fence,  the  owner  of  each  lot  is  bound  to 
keep  his  cattle  from  crossing  the  line,  and  that  it  is  a  trespass,  if 
the  cattle  of  the  one  cross  into  the  land  of  the  other.  And  that 
this  is  the  case,  notwithstanding  the  occupants  have  previously 
built  j^ortions  of  the  fence  respectively,  and  the  plaintiff  has 
■wrongfully  removed  a  part  of  the  fence  built  by  the  defendant,  if 
there  has  been  such  a  lapse  of  time  as  to  give  the  defendant  a 
reasonable  opportunity  of  building  a  new  fence  {Sturtemtnt  v. 
3fe?'rill,  33  Maine  li.,  62).  To  the  same  effect  is  a  later  case,  in 
which  it  was  held  that,  where  there  had  been  no  statutory  assign- 
ment of  a  partition  fence,  between  two  adjoining  lots  of  land 
owned  by  different  parties,  or  between  those  from  whom  they 
respectively  derive  their  title,  each  is  bound  to  keep  his  cattle  on 
his  own  land  at  his  peril  {Bradhury  v.  Gilford,  53  Maine  R., 
99).  That  is  to  say,  tlie  obligation  to  fence  out  cattle  can  arise 
onlj"  from  a  division  of  the  fence  by  fence-viewers  acting  under 
the  statute,  or  by  a  valid  agreement  in  writing,  between  the 
owners  of  adjoining  lots,  or  by  prescription.  This  doctrine  was 
laid  down  in  a  case,  in  Mdiich  it  appeared,  that  about  thirty  years 
before  the  trial,  the  dividing  fence  was  built  in  separate  portions 
by  the  OM'ners,  and  was  maintained  by  them  and  their  privies  in 
estate  for  more  than  twenty-five  years  ;  and  the  court  held  that 
the  evidence  was  sufficient  to  warrant  the  presumption  of  a 
division  by  the  parties  {Knox  v.  Tucker,  48  Maine  i?.,  373). 
Under  the  statutes  of  Maine,  it  is  held  that  sheep  escaping  from 
the  land  of  their  owner  into  contiguous  land  of  another  owner, 
cannot  be  impounded  for  doing  damage,  if  no  division  had  been 
made  of  the  partition  fence  ( Webber  v.  Glossen,  35  Maine  R.,  26). 
There  is  another  statute  of  Maine,  by  which  it  is  provided,  that 
where  buildings  or  fences  have  existed  more  than  twenty  years 
fronting  upon  any  way,  street,  lane  or  land  appropriated  to  the 
public  use,  the  bounds  of  which  cannot  be  made  certain  by  records 


STATUTES   OF  N.    H.    RESPECTING   FENCES.  405 

or  monuments,  such  buildings  or  fences  shall  be  deemed  to  be  the 
true  bounds  thereof.  But  when  the  bounds  can  be  made  certain, 
no  time  less  tlian  forty  years  will  fix  the  boundary  of  the  same 
{B.  S.  of  ISTl,  tit.  2,  ch.  18,  §  76).  And  fences  erected  and  main- 
tained as  above  will  not  be  regarded  as  nuisances  {E.  S.,  tit.  2,  ch. 
17,  §  10). 

The  Supreme  Court  of  the  State  has  recently  held,  that  the 
respective  owners  of  adjacent  lands,  may  become  bound  by  pre- 
scription to  maintain  specific  portions  of  their  partition  fences. 
But  where  there  is  no  prescription,  agreement  or  statute,  no  ten- 
ant is  bound  to  fence  against  an  adjoining  close.  This  was  so 
held  upon  authority  {Harlow  v.  Stinson,  GO  Maine  B.,  3-17  ;  cmd 
vide  Little  v.  Lathrop.,  5  ih.^  357). 

The  statutes  of  the  State  further  declare  that  legal  and  sufii- 
cient  fences  are  to  be  made  on  each  side  of  land  appropriated  for 
a  railroad,  where  it  passes  through  inclosed  or  improved  land,  or 
wood  lots  belonging  to  a  farm,  before  a  construction  of  the  road, 
and  the  railroad  company  is  made  lial)le  to  a  penalty  for  neglect- 
ing to  make  or  repair  such  fence  {R.  S.,  tit.  4,  ch.  51,  §§  20,  21). 
Provision  is  also  made  by  statute  for  proprietors  of  lands  inclosed 
in  common,  regulating  the  subject  of  fencing  their  common  lands, 
but  as  the  same  affects  few  persons  except  the  parties  interested 
in  such  lands  in  common,  and  they  will  most  likely  be  informed 
in  respect  to  the  statute,  it  is  unnecessary  to  give  its  provisions  in 
this  place  {12.  S.,  ch.  22.  §§  15-39).  And  tliere  is  also  a  provision 
of  the  Maine  statutes,  justifying  the  taking  up  and  impounding 
animals  found  trespassing  upon  lands  inclosed  by  lawful  fences. 
And  it  has  been  held  that  the  common-law  right  to  impound  cat- 
tle damage-feasant,  is  taken  away  in  Maine  by  the  statute  of 
1837,  chapter  137.  And  it  was  further  held  that  the  lands  of 
individuals,  lying  in  common  and  uninclosed,  cannot  be  under- 
stood to  be  "  common  lands,"  within  the  meaning  of  the  statute 
{Cutts  V.  Husscy,  3  Shep.  R.,  237).  This  rule  makes  it  obliga- 
tory upon  a  party  who  undertakes  to  justify  the  taking  up  and 
impounding  another's  cattle,  to  show  a  full  and  entire  compliance 
with  the  requisitions  of  the  statute,  or  he  becomes  a  trespasser  ah 
i7iitio  {Morse  v.  Reed,  28  Maine  R.,  481). 

By  the  statutes  of  New  Hampshire  the  owners  of  adjoining 
lands,  under  improvement,  are  required  to  build  and  repair  the 
partition  fence  between  them  in  equal  shares ;  and  any  division  of 


406  i^TT  OF  FENCES. 

such  fence,  made  bj  the  parties  in  writing,  and  recorded  in  the 
town  records,  is  made  binding  upon  the  parties  and  their  succes- 
sors. Such  division  may  also  be  established  by  usage  and  acquies- 
cence of  the  parties,  and  those  under  whom  they  claim  for  twenty 
years.  If  the  parties  do  not  agree  upon  a  division  the  fence- 
viewers,  upon  application,  must  make  such  division,  which,  when 
recorded  in  the  town  records,  is  made  of  the  same  effect  as  a 
division  by  the  parties,  and  a  copy  of  the  record  is  made  evidence 
{Gen.  Stat.  0/I86T,  ch.  128,  §§  1-4). 

"Wliat  is  a  legal  and  sufficient  fence,  is  the  same  in  all  respects 
as  is  provided  by  the  statutes  of  Maine,  and  the  provisions  of  the 
New  Hampshire  statutes  in  respect  to  the  insufficiency  and  repair 
of  division  fences  upon  the  order  of  the  fence-viewers,  and  the 
recovery  of  the  delinquent  party  of  double  the  value  of  the  appraised 
value  of  the  fence  built  by  the  other  party,  are  substantially  like 
the  Maine  law ;  and  reference  may  be  had  to  the  latter  statute  for 
those  provisions  {Gen.  Stat.,  ch.  128,  §§  5-9). 

Where  the  owner  of  improved  land,  adjoining  unimproved  land 
of  another,  has  built  the  line  fence,  he  may  demand  and  recover 
of  the  adjoining  owner,  when  he  begins  to  improve  his  land,  the 
Yalue  of  the  part  of  the  fence  which  he  ought  to  build ;  and  if 
they  cannot  agree  upon  the  value,  the  fence- viewers  may  deter- 
mine the  same.  And  where  the  ownier  ceases  to  improve  his 
land,  or  lays  it  out  to  common,  he  must  not  remove  his  fence ;  but 
lie  will  not  be  bound  to  repair  it  so  long  as  he  allows  it  to  remain 
unimproved  or  in  common.  If  a  party  neglects  to  maintain  a 
legal  partition  fence  he  cannot  recover  any  damage  which  may 
accrue  by  reason  of  it,  but  will  be  bound  to  pay  damage  to  others 
arising  therefrom  {Gen.  Stat.,  ch.  128,  §§  10-13).  The  other  pro- 
visions of  the  New  Hampshire  statutes  are  substantially  like  the 
Maine  statutes  upon  the  same  subject ;  and  it  will  be  safe  to  con- 
sult the  laws  of  that  State  for  all  needful  information  in  connec- 
tion with  the  statutes,  the  substance  of  which  is  here  given, 
together  with  the  points  settled  by  the  courts,  and  which  follow 
this  paragraph. 

An  application  to  the  fence-viewers,  under  the  New  Hampshire 
statute,  may  include  the  division  of  the  fence,  its  sufficiency,  and 
the  limitation  of  time  to  repair  it  or  build  a  new  one.  But  notice 
of  an  application  for  each  must  be  given  to  the  adverse  party, 
and,  unless  the  proceedings  limiting  the  time  of  repair  are  valid, 


STATUTES   OF  N.    H.    RESPECTING   FENCES.  407 

the  plaintiff  cannot  recover  under  the  statute  for  building  the 
defendant's  part  of  the  fence  {Fairha7iks  v.  Childs,  44  N.  II.  J?., 
458).  And  under  the  statute  providing  that,  upon  the  division  of 
a  fence  by  fence-viewers,  the  party  making  the  application  shall 
pay  the  fence-viewers  for  their  services,  and  have  an  action  of 
assumpsit  against  the  other  part}^  for  the  one-half.  No  cause  of 
action  for  such  payment  exists  until  after  legal  demand  made; 
and  a  demand  prior  to  payment  is  held  to  be  insufficient.  A 
demand,  to  be  legal,  must  be  made  after  payment,  and  b}'  the 
party  making  the  application,  or  his  authorized  agent  or  attorney; 
and  in  such  a  manner  that  opportunity  is  given  to  pay  the  sum 
demanded  at  the  time  of  the  demand.  Where,  after  payment  in 
such  a  case,  the  party  making  it  left  his  claim  with  a  legal  firm  for 
collection,  who  resided  several  miles  from  the  parties,  and  in  a 
different  county,  and  the  attorneys  wrote  the  other  party  two 
letters,  which  were  received,  calling  upon  him  to  make  the  pay- 
ment to  them,  the  court  held  that  such  a  demand  by  the  attorneys 
was  not  a  legal  one  (  Wh'tttier  v.  Johnson^  38  N.  II.  it'.,  160). 
But  in  an  action  to  recover  one-half  of  the  fees  paid  to  fence- 
viewers,  under  the  statute,  it  is  not  necessary  for  the  party  to 
show  that  the  application  for  the  division  has  been  recorded. 
Such  an  action  will  not  be  defeated  by  its  appearing  that  the  appli- 
cation has  not  been  recorded.  And  it  is  held  that  if  three  fence- 
viewers  attend  a  hearing  for  the  division  of  fences,  a  return,  signed 
by  two  of  them,  is  sufficient.  In  order  to  give  the  fence-viewers 
jurisdiction  to  make  a  division  of  fences,  it  is  not  necessary  that 
there  should  be  any  positive  disagreement  between  the  pai'ties. 
If  they  have  not  agreed  upon  a  division  and  reduced  it  to  writing, 
the  fence-viewers  may,  upon  application,  make  the  division. 
And  it  is  held  that  a  division  of  partition  fences  cannot  be  shown 
by  a  prescription  gained  since  the  passage  of  the  statutes  of  the 
State  upon  that  subject,  so  as  to  prevent  a  division  by  the  fence- 
viewers.  But  the  doctrine  was  laid  down  that,  before  an  action 
can  be  sustained  for  one-half  of  the  fees  paid  to  the  fence-viewers 
for  making  a  division  of  partition  fences,  the  apj^licant  must 
demand  the  same  of  the  party  sought  to  be  charged.  It  is  held 
that  several  separate  fences  may  be  included  in  one  application  to 
fence-viewers  for  a  division ;  and  if  they  are  separately  and  dis- 
tinctly divided,  it  will  be  no  objection  to  the  legality  of  a  part, 
that  others  are  improperly  included  in  the  application,  nor  any 


408  ^-^  "^  ^^  FEyCES. 

objection  to  the  payment  of  the  fees  fur  those  legally  divided 
{GUddeti  V.  Tcnde,  11  Foster's  R.,  14:7).  In  ai.  action  of  assnmp- 
sit  by  a  landowner  against  his  neighbor,  to  recover  the  latter's 
portion  of  money  paid  to  fence-viewers,  the  court  held  tliat,  to 
support  the  action,  it  must  appear  that  the  division  liad  been 
made  on  the  representation  of  one  or  both  the  parties;  that  one 
of  them  had  refused  to  pay  the  part  awarded  him  to  pay,  and  that 
the  division  had  been  made  on  the  true  line  between  them  {Gal- 
lup V.  Mulvah,  2  Foster's  B.,  204:).  In  one  case,  it  appeared 
that  the  fence-viewers  had  made  a  division  of  a  fence,  and  the 
action  was  brought  to  recover  one-half  the  costs  taxed  by  them. 
One  of  the  board  did  not  take  the  official  oath  till  the  day  of  hear- 
ing, but  no  objection  was  then  made.  The  court  held  that  this 
fact  constituted  no  defense  to  the  action.  If  it  was  a  good  objec- 
tion, it  should  have  been  taken  at  the  hearing.  The  court  further 
held  that  it  was  not  necessary  that  the  fence-viewers  should  furnish 
copies  of  their  report  to  the  parties  within  one  week  after  their 
decision,  or  that  the  items  of  their  fees  be  specified  in  their  report. 
Neither  is  it  a  good  objection  tliat  the  fence-viewers,  in  their 
report,  order  the  part  of  the  fence  assigned  to  each  party  to  be 
built  by  him,  "and  kept  in  repair  by  him,  his  heirs  and  assigns 
forever,"  as  that  would  be  only  stating  tlie  legal  eifect  of  tlie 
division  {GalUq)  v.  Mulvah,  supra).  The  duties  of  fence-viewers 
are  chiefly  judicial;  and  it  has  been  held  that  proceedings 
before  fence-viewers,  one  of  whom  Avas  an  uncle  of  one  of  the 
parties  interested,  were  absolutely  void  {Sanborn  v.  Felloivs,  2 
2  Foster's  R.,  473). 

Where  A.'s  sheep  escaped  from  his  land  into  B.'s  land,  through 
the  insufficiency  of  a  fence  which  B.  was  bound  to  repair,  and 
thence  passed  into  another  adjoining  lot  of  B.,  which  was  sur- 
rounded by  a  sufficient  fence,  and  committed  damage,  the  Supreme 
Court  held  that  B.  could  not  maintain  trespass  therefor  against  A. 
{Page  v.  Olcott,  13  N.  II.  R.,  399).  And  it  has  been  held  that, 
when  there  has  been  a  parol  partition  of  a  fence,  executed  bj  the 
parties,  it  cannot  be  revoked,  except  on  application  to  the  fence- 
viewers.  A  mere  notice  to  the  adjoining  owner  of  a  revocation  is 
insufficient.  And  where,  after  such  notice,  cattle  have  escaped 
on  to  an  adjoining  close,  through  a  defect  of  the  fence  of  such 
adjoining  owner,  and  have  been  taken  damage-feasant,  the  court 
holds  that  replevin  will  lie  to  reclaim  them  {York  \.  Davis,  11 


STATUTES   OF  X    H.    RESPECTING   FENCES.  403 

N.  II.  B.,  241).  The  courts  hold  that  it  is  the  occupier  and  not 
the  owner  of  a  close,  who  is  bound  to  keep  the  fences  in  repair. 
Where  A.  and  B.  owned  adjoining  closes  wdiich  are  not  divided, 
each  is  bound  to  keep  his  cattle  on  his  own  land  at  his  peril.  But 
if  C,  with  A.'s  assent,  keep  his  oxen  in  A.'s  pasture,  and  has  the 
custod}'^  of  them  there,  and  they  stray  in  B.'s  close,  C,  and  not 
A.,  is  to  be  considered,  quoad  the  oxen,  as  the  occupier  of  A.'s 
close,  and  is  liable  for  the  damage.  Otherwise,  if  A.  has  the  cus- 
tody of  C.'s  oxen  while  they  are  in  his  close  {Tewksbury  v.  BucJdin, 
7  iY.  //.  B.,  518). 

Where  adjoining  owners  had,  in  different  places,  built  perma- 
nent fences,  on  what  was  supposed  to  be  the  true  line  between 
them,  and  each  had  occupied  for  more  than  twenty  years  up  to 
such  fences,  it  was  held,  that  this  did  not  entitle  either  party  to 
hold  by  adverse  possession,  upon  another  part  of  the  same  line, 
where  a  temporary  fence  had  been  kept  up,  varying  from  the  line 
of  the  permanent  fences.  But  such  permanent  fences  furnish  evi- 
dence tending  to  show  an  agreement  of  the  parties  to  establish  a 
direct  line  between  them  ;  and  this  evidence  may  be  left  to  the 
jury,  with  other  circumstances,  upon  the  question  whether  such 
agreement  has  in  fact  been  made.  But  a  bush-fence,  maintained 
near  the  line,  between  the  possessions  of  two  adjoining  owners, 
but  not  continued  at  all  times  in  the  same  place,  was  held  to  be 
no  evidence  of  an  adverse  pussession,  so  as  to  bind  either  party  to 
the  line  usually  occupied  by  such  fence  {Smith  y.  Ilosmer^l  N. 
II.  E.,  436).  And  the  court  also  held  that,  where  one  of  two 
owners  of  adjoining  lots  of  land  sees  the  other  erect  a  permanent 
fence  between  their  lands,  without  making  any  objection,  this  is 
evidence  of  an  agreement  on  his  part  that  the  fence  is  erected  on 
the  true  line  {Eaton  v.  Mice,  8  M.  II.  B.,  378). 

The  Supreme  Court  of  the  State  has  held  that  the  owner  of  a 
close  is  not  obliged  to  fence  against  any  cattle  but  such  as  are 
rightfully  upon  the  adjoining  land.  And  it  was  decided  that  this 
rule  was  not  changed  by  the  statute  which  provides  that  "  the 
party  neglecting  to  build  or  keep  in  repair  any  partition  fence 
which  he  is  bound  to  maintain,  shall  be  liable  for  all  damages 
arising  from  such  neglect ;  and  shall  have  no  remedy  for  any  dam- 
ages happening  to  himself  therefrom."  The  case  before  the  court 
was  this:  The  plaintifE  and  defendant  were  owners  of  adjoining 
closes,  and  had  divided  the  partition  fence  between  them,  cattle, 
52 


410  LAW  OF  FENCES. 

belonging  to  third  persons,  which  were  wrongfully  in  the  high- 
way, strayed  upon  the  defendant's  close,  and  thence  across  that 
part  of  the  fence  which  he  was  bound  to  maintain,  and  which  was 
out  of  repair,  upon  the  plaintiff's  land,  and  damaged  his  crops. 
The  court  held,  that  the  plaintiff  could  not  maintain  an  action 
against  the  defendant  for  the  damages  {Lawrence  v.  Combs,  37  iV. 
11.  B.,  331).  The  court  also  held  in  another  later  case,  that  under 
the  statute,  the  duty  of  maintaining  partition  fences  does  not  extend 
to  the  owners  of  public  buildings  erected  on  lands  laid  open  to 
public  use.  And  it  would  seem  from  the  case  that  under  this  and 
similar  statutes,  the  liability  to  fence  is  co-existent  with  the  deriva- 
tion of  benefit  tlierefrom  (  Wiggin  v.  Baptist  Society,  43  iV.  II. 
i?.,  260). 

It  has  been  held  by  the  Supreme  Court  that  the  statute  of  the 
State,  which  provides  that  if  any  person  shall  throw  down  or  leave 
open  any  bar,  gate  or  fence  belonging  to  or  inclosing  of  land 
liolden  in  common,  or  belonging  to  any  particular  person,  or  sliall 
aid  therein,  he  shall  for  every  such  offense  forfeit  and  pay  treble 
damages  to  the  person  injured,  and  also  a  sum  not  exceeding  fif- 
teen dollars,  according  to  the  aggravation  of  the  offense,  is  a  penal 
statute,  and  debt,  and  not  trespass,  is  the  proper  form  of  action 
founded  thereon  {Janvrin  v.  Scainmon,  9  Foster's  R.,  280). 

Provision  is  made  by  the  New  Hampshire  statute  in  respect  to 
taking  up  and  impounding  animals  trespassing  upon  lands  law- 
fully inclosed.  Under  this  statute,  it  has  been  held  that,  in  order 
to  justify  a  distress  of  cattle  damage-feasant,  it  is  not  necessary  to 
show  that  the  land  is  inclosed,  except  as  against  an  adjoining 
owner  [Drew  v.  Spcmlding,  45  iV^.  H.  i?.,  472).  The  party  mak- 
ing the  distress  in  all  cases  under  the  statute,  must  see  to  it  that 
his  proceedings  are  all  regular  and  legal,  or  he  may  be  made  liable 
as  a  trespasser  {Cate  v.  Gate,  44  N.  II.  R.,  211). 

In  conclusion,  it  may  be  added,  that  the  Supreme  Court  of  the 
State  has  held,  that  in  New  Hampshire,  railroad  corporations  are 
required  by  statute  to  maintain  fences  along  the  sides  of  their 
roads  {Dean  v.  Sullivan  Railroad  Company,  2  Foster'' s  R.,  316). 


STATUTES   OF  VT.   RESPECTING   FENCES.  411 


CHAPTER  XXXV. 

STATUTES    OF    THE    SEVERAL    STATES    KESPECTING    FENCES LAWS    OP 

VERMONT RULES    RELATING  TO   PARTITION  AND    OTHER    FENCES 

RAILROAD    CORPORATIONS    REQUIRED  TO    FENCE  THE    SIDES  OF  THEIR 

ROADS DECISIONS     OF    THE     COURTS    RESPECTING    FENCES   IN    THE 

STATE LAWS  OF  MASSACHUSETTS RULES  RELATING  TO  PARTI- 
TION FENCES,  AND  THE  DECISIONS  OF  THE  COURTS  CONCERNING  THE 
SAME. 

In  the  State  of  Yermont  the  statute  makes  all  fences  four  and  a 
half  feet  high  and  in  good  repair,  and  the  same  barriers  indicated 
by  the  statutes  of  Maine,  legal  and  sufficient ;  and  owners  of  land 
bordering  on  highway's  are  not  bound  to  maintain  fences  upon 
such  highwaj's.  Owners  of  adjoining  lands  are  required  to  make 
and  maintain  equal  portions  of  the  division  fence  between  their 
respective  lands,  except  either  owner  chooses  to  let  his  lands  lie 
vacant.  Where  the  owner  of  uncultivated,  unimproved  and  unoc- 
cupied lands  chooses  to  let  his  land  lie  open  and  common,  he  is  not 
required  to  fence  the  same,  unless  the  adjoining  owner  occupies 
his  land;  and  then  the  other  owner  is  compelled  to  fence  his 
land,  except  the  selectmen  of  the  town  decide  that  he  ought  to 
be  excused  from  building  any  portion  of  the  division  fence ;  and 
the  selectmen  are  to  decide  what  constitutes  uncultivated  land, 
not  properly  belonging  to  a  farm,  and  all  questions  relating  to  the 
same.  In  cases  where  the  owners  of  land  are  not  required  to 
maintain  the  division  fence,  each  one  will  be  liable  for  any  damage 
by  reason  of  any  animal  straying  from  his  lands  and  taken  on  the 
occupied  lands  of  others.  Persons  required  to  maintain  a  division 
fence,  who  may  neglect  to  keep  the  same  in  repair,  are  liable  for 
damages  done  to  the  opposite  party  in  consequence  of  such  neg- 
lect; and  any  person  sustaining  such  damages,  on  giving  ten  days' 
notice  to  the  party  who  ought  to  maintain  the  fence,  may  put  the 
fence  in  repair  and  collect  the  value  of  the  same,  with  the  damages 
of  the  delinquent  party. 

Whenever  the  lands  of  adjoining  owners  are  suffered  to  lie  with- 
out a  division  fence,  neither  party  can  legally  pasture  his  lands 
until  the  parties  have  agreed  to  occupy  in  common ;  and  if  the 
parties  cannot  agree  as  to  occupying  the  lands  in  common,  the 
fence-viewers  must  decide  the  same  upon  the  application  of  eithei 


412  LAW  OF  FENCES. 

party.  In  case  adjoining  owners  of  lands,  so  situated  that  tlio 
division  fence  cannot  be  built  on  the  line,  cannot  agree  as  to  the 
place  where  the  fence  shall  be  built,  application  may  be  made  to 
the  fence-viewers  of  the  town,  who  must  fix  the  same.  Whenever 
an  owner  of  adjoining  lands  chooses  to  occupy  his  land,  and  the 
other  chooses  to  let  his  lie  vacant,  he  may  build  the  whole  division 
fence ;  and  when  tlie  opposite  party  shall  commence  to  occupy 
his  land,  he  is  required  to  pay  for  his  portion  of  the  fence. 

In  case  a  division  fence  shall  be  suddenly  destroyed  by  fire, 
winds  or  floods,  the  person  who  ought  to  rebuild  or  repair  the 
same  must  do  so  within  ten  days  after  being  notified  for  that  pur- 
pose ;  and  in  the  mean  time  he  will  be  liable  for  damages  done  by 
estrays.  Parties  may  agree  in  writing  in  respect  to  their  division 
fences ;  but  the  agreement  must  be  witnessed  by  two  witnesses, 
and  acknowledged.  Fence-viewers  are  required  to  examine  fences 
on  request  of  any  party  interested,  under  a  penalty  for  neglect. 
"Where  the  line  of  adjoining  owners  is  a  town  line,  and  such  owners 
cannot  agree  as  to  the  division  fence,  the  same  must  be  determined 
by  a  board  of  fence-viewers  from  the  two  towns.  This  is  the  sub- 
stance of  the  statute  of  Vermont  upon  the  subject  of  fences, 
although  the  details  of  proceeding  are  omitted  {Gen.  Stat.  oflSGS, 
ch.  102).  Kailroad  corporations  are  required  to  maintain  legal 
fences  on  the  sides  of  their  road,  where  necessary ;  and,  until  such 
fences  are  built,  they  are  liable  to  pay  all  damages  occasioned  by  want 
of  the  fences.  This  provision,  however,  does  not  apply  to  a  case 
where  the  landowner  has  been  paid  for  fencing  the  road  and  has 
agreed  with  the  company  to  maintain  the  fences  {Gen.  Stat , 
ch.  28). 

The  Supreme  Court  of  Vermont  has  decided,  in  accordance 
with  the  general  tenor  of  the  authorities,  that,  at  common  law,  the 
owner  of  a  close  was  not  obliged  to  fence  against  the  cattle  of  the 
occupant  of  an  adjoining  close;  and  that  the  statute  of  the  State, 
imposing  the  duty  on  adjoining  proprietors  of  land  to  erect  and 
maintain  fences,  recognized  the  same  principle;  for  the  object 
and  design  of  fencing  is  not  to  keep  the  cattle  of  others  off"  tiie 
premises,  but  to  keep  at  home  the  cattle  of  the  occupant.  It  was 
declared  that  this  principle  has  equal  application  to  the  owners  of 
land  adjoining  public  highways;  and  where  no  statutes  exist,  and 
no  obligation  is  imposed  by  covenant  or  prescription,  a  railroad 
company  is  not  bound  to  fence  its  land  {Ilurd  v.  The  Rutland 


STATUTES   OF   VT.    RESPECTING   FEy^ES.  413 

and  Burlington  Railroad  Company,  25  Vt.  B.,  116).  And  the 
Bame  court  has  decided  that  the  owner  of  improved  land  may  use 
all  lawful  means  within  his  power  to  enforce  his  right  to  exclusive 
possession  of  his  land,  although  the  land  may  not  be  surrounded 
by  a  legal  fence.  And  the  court  held  that  if  cattle  trespass  upon 
improved  land,  which  is  not  surrounded  by  such  fence  as  is 
required  t)y  statute,  the  owner  of  the  land  may  drive  them  ofi 
and  may,  for  this  purpose,  set  a  dog  upon  them,  provided  he  is 
not  in  any  way  wanting  in  ordinary  care  and  prudence,  arising 
from  the  size  and  character  of  the  dog,  or  in  the  manner  of  setting 
him  upon  the  cattle  and  afterward  pursuing  them  {Clarh  v.  Adams, 
18  Vt.  7?.,  425). 

In  a  late  case  before  the  Supreme  Court,  it  appeared  that  the 
plaintiff,  H.  and  the  defendant  had  uncleared  and  unoccupied  lots 
lying  near  together.     The  lot  of  II.  lay  between  the  plaintiff's 
and  "defendant's  lands.     There  was  an  old,  but  not  a  legal  fence 
between  the  plaintiff's  and  H.'s,  and  between  H.'s  and  the  defend- 
ant's lots.     The  defendant  had  a  fence  west  of  his  lot ;  the  others 
had  none.  The  defendant's  sheep  escaped  from  his  lot,  crossed  over 
the  lot  of  H.  into  the  plaintiff's,  and  did  the  damage  complained 
of.     The  court  held,  that  the  plaintifi"  could  recover  in  trespass  ; 
the  defendant  being  under  obligation  to  restrain  his  animals,  so  as 
to  prevent  their  going  astray  and  doing  damage ;  and  the  plain- 
tiff not  being  an  adjoining  proprietor,  was  not  bound  to  fence 
against  the  defendant's  animals  ( Wilder  v.  Wilder,  38  Vt.  J2., 
678).     In  a  still  later  case,  the  same  court  held,  that  a  declaration 
in  an  action  on  the  case  alleging  that  the  plaintiff  and  the  defend- 
ant were  owners  and  occupiers  of  adjoining  lands,  that  the  defend- 
ant was  under  obligation  to  keep  up  a  legal  division  fence  between 
them,  that  he  neglected  to  do  so,  and  in  consequence  of  such  neg- 
lect, the  defendant's  mare  passed  over  the  fence  and  injured  the 
plaintiff  's  horse  by  kicking,  the  gist  of  the  action  was  not  that 
of  trespass.     And  it  being  proved  that  there  had  never  been  any 
repudiation    of  an  agreement  between  the  parties  each  to  build 
and  maintain  respective  portions  of  the  division  fence,  the  plain- 
tiff, failing  to  show  that  the  mare  passed  over  the  defendant's  por- 
tion of  the  fence,  was  not  entitled  to  recover.     It  was  declared 
that  the  gist  of  the  action  was  the  defendant's  obligation  and  neg- 
lect to  keep  up  the  fence  {Tiipper  v.  ClarJc,  43  Vt.  E.,  200). 
It  seems  that  under  the  statute  relating  to  fences,  it  is  not  a 


414  LAW  OF  FENCES. 

prerequisite  to  the  recovery  of  damages  occasioned  by  the  neglect 
of  one  party  to  build  or  maintain  his  share  of  a  legal  division 
fence,  that  the  other  party  should  first  build  or  repair  the  fence, 
after  ten  days'  notice  to  the  party  in  default.     The  liability  of  a 
party  for  such  neglect,  is  not  restricted  to  injuries  connected  with 
the  use  of  the  other  party's  land,  but  extends  to  all  damages  which 
may  lairly  be  said  to  be  the  legal  and  natural  consequence  of  such 
neglect.     In  the  case  before  the  court,  it  appeared  that  A.  and  B. 
were  adjoining  proprietors,  and  had  divided  their  division  fence, 
one  part  to  be  maintained  by  one,  and  the  other  part  by  the  other. 
In  consequence  of  the  neglect  of  B.  to  maintain  his  portion  of  the 
fence,  A.'s  horses  escaped  through  that  portion  upon  B.'s  land, 
where  they  were  gored  by  B.'s  bull.     The  court  held,  that  the  fact 
that  A.'s  portion  of  the  fence  was  insufficient  did  not  constitute  a 
bar  to  his  recovery  of  damages  for  this  injury.     It  was  also  held 
in  an  action  on  the  case  in  lavor  of  A.  against  B.,  for  the  recovery 
of  such  damages,  that  the  court  should  leave  it  to  the  jury  to  find 
whether  they  were   the  natural  consequence   of  B.'s  neglect  to 
maintain  his  portion  of  the  fence,  and  such  as  under  the  circum- 
stances he  might  reasonably  expect  would  follow  therefrom,  and 
unless  they  should  find  them  to  be  such,  the  plaintiff  could  not 
recover  {Saxton  v.  Bacon,  31  Vt  B.,  540). 

If  land  within  the  surveyed  limits  of  a  public  highway  be 
inclosed  by  an  individual  and  occupied  by  him  constantly  for  more 
than  twenty  years,  under  a  claim  of  right,  he  will  acquire  a  pre- 
scriptive right  to  the  land  so  occupied,  as  against  the  public,  and 
can  maintain  trespass  against  the  selectmen  of  the  town,  w^ho 
remove  his  fence  to  the  original  line  of  the  highway.  This  doc- 
trine was  so  held  in  a  well-considered  case  before  the  Supreme 
Court  of  Vermont,  some  twenty  years  ago  {Knight  v.  Ileaton,  22 
Yt.  R.,  480). 

The  Supreme  Court  of  the  State  has  held,  that  a  justice  of  the 
peace  has  not  jurisdiction  under  the  statutes  of  Vermont,  of  an 
action  on  the  case,  brought  by  a  landowner,  under  the  provisions 
of  chapter  89  of  the  Revised  Statutes,  against  the  owner  of 
adjoining  land,  to  recover  the  expense  of  building  that  part  of  the 
division  fence  between  them,  which  the  fence-viewers  have 
assigned  to  the  defendant  as  his  proportion  thereof.  And  it  was 
further  held  in  the  same  case,  that  fence-viewers  have  no  authority 
to  settle  the  rights  of  different  claimants  of  land,  or  to  establish 


STATUTES   OF  MASS.    RESPECTING  FENCES.  415 

disputed  boundaries ;  and  that  neither  party  is  precluded  by 
their  decision,  from  contestin*^  the  question  of  ownership  in  him- 
self, or  in  the  adverse  party,  or  the  location  of  their  boundaries 
{Shaw  V.  Gr'iffin,  22  Vt.  R.,  565). 

By  the  statutes  of  Vermont  any  person  may  impound  any  beast 
found  in  his  inclosure  doing  damage  {Gen.  Stat.,  ch.  100,  §  4). 
Under  this  statute,  it  has  been  held  tiiat  in  order  to  constitute  an 
inclosure  contemplated  by  its  provisions,  it  is  not  necessary  that 
the  fence  should  be  such  as  is  described  in  the  general  statutes 
relating  to  fences  {Keith  v.  Bradford,  39  Yt.  R.,  34 ;  vide  also 
Davis  V,  Camphell,  23  ih.,  236).  But  it  has  been  held  tliat  the 
meaning  of  "  inclosure  "  in  the  statute,  is  occupied  land,  and  the 
right  to  impound  cattle,  extends  only  to  such  as  are  trespassing  on 
inclosed  lands  {Porter  v.  Aldrich,  39  Yt.  R.,  326). 

By  the  General  Statutes  of  Massachusetts  it  is  provided  that 
fences  four  feet  high  and  in  good  repair,  consisting  of  rails,  timber, 
boards  or  stone,  and  brooks,  rivers,  ponds,  creeks,  ditches  and 
liedges,  or  other  things  which  the  fence-viewers  (within  whose 
jurisdiction  the  same  shall  lie)  shall  consider  equivalent  thereto, 
shall  be  deemed  legal  and  sufficient.  And  the  respective  occu- 
pants of  lands  inclosed  with  fences  are  required,  so  long  as  both 
parties  improve  the  same,  to  keep  up  and  maintain  partition 
fences  between  their  own  and  the  next  adjoining  inclosures  in 
equal  shares  {Gen.  Stat.,  ch.  25,  §§  1,  2). 

The  Supreme  Judicial  Court  of  the  State  has  held,  in  accord- 
ance with  the  rule  of  the  common  law,  that  where  a  party  is  not 
bound  by  prescription,  agreement,  or  assignment  of  fence-viewei"s, 
to  maintain  a  fence  between  his  land  and  that  of  an  adjoining 
owner,  he  may  sustain  an  action  of  trespass,  qiiare  clausum  f regit, 
against  the  adjoining  owner,  whose  cattle  escape  into  his  land. 
The  court  held  that  the  common  law  on  this  point  is  not  altered 
by  the  statutes  of  the  commonwealth  {Thayer  v.  Arnold,  4  Met. 
R.,  589).  It  has  also  been  held  by  the  same  court  that  an  occu- 
pant of  land,  who  is  bound  to  maintain  a  fence  between  his  own 
and  an  adjoining  inclosure,  may  place  half  of  the  fence,  of  reason- 
able dimensions,  on  the  land  of  the  adjoining  owner;  and  that  he 
may  also  cut  half  of  a  ditch  on  the  land  of  such  owner,  w'here  a 
ditch  is  proper  for  a  partition  fence  {Newell  v.  Ilill,  2  Met.  R., 
180;  hut  lyide  Sparhaiok  v.  Twitchell,  1  Allen's  R.,  450).  In  a 
case  before  the  Supreme  Judicial  Court  of  the  State,  it  appeared 


416  LAW  OF  FEiXCJES. 

that  the  owner  of  a  tract  of  land  conveyed  a  portion  of  it  to  the 
inliabitants  of  the  town  in  which  it  lay,  by  a  deed,  with  this 
clause:  "And  it  is  for  the  nse  of  a  burying-place ;  if  the  above 
described  land  is  to  be  inclosed  with  a  fence,  tlie  same  is  to  be 
done  by  the  inhabitants  aforesaid."  The  town  accepted  the  deed 
and  bnilt  a  division  fence,  but  did  not  keep  it  in  repair;  and  in 
consequence  of  this  neglect  the  cattle  of  the  person  in  possession 
of  the  contiguous  land  escaped  therefrom  into  the  burying-place, 
and  thereupon  the  town  impounded  them.  The  court  held  that 
the  town,  by  accepting  the  deed,  was  bound  to  maintain  the  fence, 
and  that  the  impounding,  under  the  statute,  was  unlawful,  as  the 
escape  was  through  the  neglect  of  tlie  town,  within  the  true  mean- 
ing of  the  statute  {Mmor  v,  Delano,  18  Piclc.  It.,  206).  But  the 
same  court  held,  in  a  later  case,  that  the  fact  that  the  proprietors 
of  a  railroad  have  erected  fences  along  the  line  of  their  road, 
against  the  land  of  a  particular  individual,  is  not  of  itself  evidence 
of  any  obligation  on  the  part  of  the  proprietors  to  make  or  main- 
tain fences  for  the  benefit  of  such  person  {Moi'se  v.  The  Boston 
and  Maine  Railroad,  2  Cush.  R.,  536). 

The  statute  further  provides  that,  if  a  party  refuse  or  neglect  to 
repair  or  rebuild  a  partition  fence  which  he  ought  to  maintain,  the 
aggrieved  party  may  complain  to  two  or  more  fence-viewers  of 
the  place,  who,  after  due  notice  to  each  party,  shall  survey  the 
same ;  and  if  they  determine  that  the  fence  is  insufficient  they 
shall  signify  the  same  in  writing  to  the  delinquent  occupant,  and 
direct  him  to  repair  or  rebuild  the  same  within  such  time  as  tliey 
judge  reasonable,  not  exceeding  fifteen  days ;  and  if  the  fence 
shall  not  be  repaired  or  rebuilt  accordingly,  the  complainant  may 
make  or  repair  the  same.  When  a  deficient  fence,  bnilt  up  or 
repaired  by  a  complainant,  as  thus  provided  is,  after  due  notice 
to  each  party  adjudged  sufficient  by  two  or  more  of  the  fence- 
viewers,  and  the  value  thereof,  with  their  fees  ascertained,  by  a 
certificate  under  their  hands,  the  complainant  may  demand,  either 
of  the  occupant  or  owner  of  the  land  where  the  fence  was  deficient, 
double  the  sum  so  ascertained  ;  and  in  case  of  neglect  or  refusal 
to  pay  the  same  so  due,  for  one  month  after  demand,  he  may 
recover  the  same,  with  interest  at  one  per  cent  a  month,  in  an 
action  of  contract  {Gen.  Stat.,  ch.  25,  §§  3,  4). 

Wliere  the  fence-viewers,  upon  the  application  of  one  party,  but 
without  notice  to  the  other,  appraise  the  value  of  the  hitter's  por- 


STATUTES   OF  MASS.    RESPECTIXG   FENCES.  417 

tion  of  a  fence,  which  lias  been  erected  by  the  former  in  conse- 
quence of  the  latter's  neglect  to  erect  the  same,  such  appraisement 
is  held  to  be  void  as  against  the  party  in  default.  In  the  case 
before  the  court  it  appeared  that  the  plaintiff  had,  in  consequence 
of  the  neglect  of  the  defendant,  erected  the  portion  of  a  division; 
fence,  which  was  allotted  to  the  defendant  by  the  fence-viewers,, 
and  the  fence-viewers  afterward,  on  the  application  of  the  plaintiff,, 
but  without  notice  to  the  defendant,  appraised  the  value  of  sudi 
fence,  and  the  plaintiff  brought  his  action  to  recover  double  the 
amount  of  such  valuation,  in  pursuance  of  the  statute..  The  court 
held  that  the  appraisement  was  void  as  against  the  defendant 
{Scott  V.  Dickinson,  14  Pick.  7?.,  276).  This  decision  was  made 
when  the  statute  did  not  expressly  require  notice  of  the  appraise- 
ment to  be  given  to  the  delinquent  party.  The  present  statute 
requires  "  due  notice  to  each  party,"  to  be  given  by  the  fence- 
viewers,  before  they  proceed  to  make  the  appraisal ;  so  that  now 
there  would  seem  to  be  no  question  as  to  the  appraisement  without 
due  notice  to  the  delinquent  party. 

It  seems  that,  under  a  complaint  that  a  fence  is  ont  of  repair,, 
fence-viewers  have  no  authority  to  assign  to  each  of  the  owners  of 
adjoining  land  his  respective  share  of  the  fence,  and  to  direct  the 
building  thereof  within  a  specified  time  ;  and  no  action  will  lie 
npon  an  award  of  fence-viewers  under  the  foregoing  provision  of 
the  statute,  unless  the  fence-viewers  have  previously  adjudicated 
that  the  existing  fence  was  insufficient  and  illegal,  and  that  the 
fence  which  the  plaintiff  has  rebuilt  is  sufficient  {Sears  v.  CharU- 
mont,  6  Allen's  E.,  43T). 

The  statute  further  provides  that,  where  a  controversy  arisesr 
about  the  rights  of  the  respective  occupants  in  partition  fences,, 
and  their  obligation  to  maintain  the  same,  either  party  may  apply 
to  two  or  more  fence-viewers  of  the  places  where  the  lands  lie,, 
who,  after  due  notice  to  each  party,  may,,  in  writing,  assign  to- 
each  his  share  thereof,  and  direct  the  time  within  which  each  party 
shall  erect  or  repair  his  share,  in  the  manner  before  provided ; 
which  assignment,  being  reco-rded  in  the  city  or  town  clerk's- 
office,  is  made  binding  upon  the  parties  and  upon  the  succeeding 
occupants  of  the  lands,  who  are  required  thereafter  to  maintain 
their  respective  parts  of  such  fence.  And  if  a  party  refuses  or 
neglects  to  erect  and  maintain  the  part  of  a  fence  assigned  to  him 
by  the  fence-viewers,  the  same  may,  in  the  manner  before  provided, 
53 


418  LAW  OF  FEXCES. 

be  erected,  and  an  action  maintained  bj  an  aggrieved  party ;  and 
he  will  be  entitled  to  double  the  value  thereof,  ascertained  and 
recovered  in  the  manner  aforesaid  {Gen.  Stat.,  ch.  25,  §§  5,  6). 

The  Supreme  Judicial  Court  of  the  State,  has  held,  under  this 
provision  of  the  statute,  that  an  assignment  by  fence-viewers  of 
only  a  part  of  a  continuous  line  of  partition  fence  is  not  for  that 
reason  invalid,  neither  party  at  the  time  requesting  that  the  whole 
line  be  divided.  And  it  was  declared  that,  after  such  assignment 
has  been  duly  made,  the  obligations  of  the  parties  are  fixed  to 
maintain  the  fence  accordingly,  and  cannot  be  changed,  without 
consent,  by  a  subsequent  view  and  division  by  the  fence-viewers 
of  the  whole  continuous  line  of  partition  fence  {Alger  v.  Pool,  11 
Cush.  R.,  450).  But  the  court  has  decided  that,  in  Enaction  under 
the  statute,  to  recover  double  the  value  of  a  partition  fence  erected 
by  the  plaintiff  after  the  defendant's  refusal  to  erect  it,  it  is  neces- 
sary to  prove  that  the  fence-viewers  gave  the  defendant  notice  of 
their  meeting,  before  they  adjudged  the  fence  sufficient,  and 
appraised  the  value  thereof.  It  was  held,  however,  that  such 
adjudication  and  appraisement  are  one  transaction,  and  are  to  be 
made  at  the  same  time  ;  that  is  to  say,  it  is  not  necessary  that  the 
fence-viewers  should  give  the  defendant  a  separate  and  distinct 
notice  of  the  two  purposes  of  their  meeting.  It  was  further  held 
that,  when  a  plaintiff,  who  has  erected  a  fence  which  the  defend- 
ant has  refused  to  erect,  demands  of  the  defendant  double  the 
sum  ascertained  and  certified  by  the  fence-viewers  as  the  value  of 
such  fence,  and  also  demands  the  fence-viewers'  fees,  which  are  not 
lesrallv  taxed,  the  demand  for  each  item  is  in  its  nature  several, 
and  the  demand  for  the  fees  does  not  render  void  the  demand  for 
the  other  sum  {Lamb  v.  Hicks,  11  Met.  R.,  496).  In  an  action  on 
the  statute  to  recover  double  the  value  of  a  partition  fence  erected 
by  the  plaintiff,  after  the  refusal  of  the  defendant  to  erect  it,  the 
defendant  cannot  defeat  the  claim,  by  showing  that  an  assignment 
of  his  share  of  the  fence  in  question  was  made  by  fence-viewers 
under  a  mistaken  belief  of  himself  and  the  plaintiff  as  to  the  true 
division  line  of  their  lands,  and  that  a  part  of  the  land  on  which 
the  fence  was  made  was  afterward  adjudged  to  be  the  property  of 
the  plaintiff.  It  seems  that  in  such  action,  the  adjudication,  by 
the  fence-viewers,  that  the  fence  erected  by  the  plaintiff  is  suffi- 
cient, is  conclusive  on  the  defendant,  and  cannot  be  impeached  by 
evidence  tendinec  to  show  that  the  fence  was  insufficient.     Nor 


STATUTES   OF  MASS.    RESPECTI.yGf   FENCES.  419 

vvill  the  defendant  be  permitted  to  show  in  defense,  tliat  the  phiin- 
tiff's  own  fence  was  insufficient  when  he  applied  to  the  fence- 
viewers  to  survey  the  defendant's  fence,  and  determine  as  to  its 
sufficiency  {Baker  v.  Lakeman,  12  Met.  i?.,  195). 

When  in  a  controversy  between  adjoining  occupants  as  to  their 
respective  rights  in  a  partition  fence,  it  appears  to  the  fence- 
viewers  that  either  of  the  occupants  had,  before  any  compLamt 
made  to  them,  voluntarily  erected  the  whole  fence,  or  more  than 
his  just  share  of  the  same,  or  otherwise  become  proprietor  thereof, 
the  statute  provides  that  the  other  occupant  shall  pay  the  value  ot 
so  much  thereof  as  may  be  assigned  to  him  to  repair  or  maintain, 
to  be  ascertained  and  recovered  as  provided  in  the  said  chapter 
25.  And  the  statute  requires  partition  fences  to  be  kept  in  good 
repair  throughout  the  year,  unless  the  occupants  of  the  lands  on 
both  sides  shall  otherwise  agree  {Gen.  Stat,  ch.  25,  §§  T,  8). 

The  proceedings  to  ascertain  the  value  of  the  portion  of  the 
fence  in  this  paragraph  referred  to,  are  pointed  out  in  sections  four 
and  six  of  the  statute,  the  provisions  of  which  have  been  herein- 
before o-iven.  So  that  the  principles  settled  by  the  court  in  the 
case  oi^Lamh  v.  Ilichs  (11  Met.  R.,  496),  will  be  applicable  in  a 
case  arising  mider  section  eight  of  the  statute. 

Where  lands   of  different  persons   which   are   required   to  be 
fenced,  arc  bounded  upon  or  divided  from  each  other,  by  a  river, 
brook,  pond  or  creek,  if  the  occupant  of  the  land  on  one  side 
refuses  or  neglects  to  join  with  the  occupant  of  the  land  on  the 
other  side  in  making  a  partition  fence  on  the  one  side  or  the  other,  or 
shall  disagree  respecting  the  same,  then  two  or  more  fence-viewers 
of  the  place  or  places  wherein  such  lands  lie,  on  application  made 
to  them,  are  required  by  the  statute,  forthwith  to  view  such  river, 
brook,  pond  or  creek;  and  if  they  determine  the  same  not  to 
answer  the  purpose  of  a  sufficient  fence,  and  that  it  is  impractica- 
ble  to  fence  on  the   true  boundary   line   without   unreasonable 
expense,  they  are  then  required,  after  giving  notice  to  the  parties 
to  be  present,  to  determine  how,  or  on  which  side  thereof,  the 
fence  shall  be  set  up  and  maintained,  or  whether  partly  on  one 
side  and  partly  on  the  other  side,  as  to  them  may  appear  just,  and 
to  reduce  their  determination   to  writing ;  and   if  either  of  the 
parties  refuses  or  neglects  to  make  and  maintain  his  part  of  the 
fence  according  to  the  determination   of  the  fence-viewers,  the 
same  may  be  made  and  maintained  as  before  provided,  and  the 


420  LAW  OF  FENCES. 

delinquent  party  is  made  subject  to  the  same  costs  and  charges  to 
be  recovered  in  like  manner  {Gen.  Stat,  ch.  25,  §  9). 

The  Supreme  Judicial  Court  of  the  State  has  held,  that  a  par- 
tition fence  on  land  that  is  covered,  a  part  of  the  year,  with  the 
■waters  of  an  artificial  mill-pond,  but  is  occupied  and  used  as  pas- 
ture or  mowing  land  during  another  part  of  the  year,  is  not  a 
water  fence,  within  the  meaning  of  the  statute  {Lamh  v.  Ilicks, 
11  Met.  B.,  496). 

The  statute  further  provides  that,  where  lands  belonging  to  two 
persons  in  severalty  have  been  occupied  in  common  without  a  par- 
tition fence  between  them,  and  one  of  the  occupants  desires  to 
occupy  his  part  in  severalty,  and  the  other  occupant  refuses  or 
neglects  on  demand  to  divide  the  line  where  the  fence  ought  to  be 
built,  or  to  build  a  sufficient  fence  on  his  part  of  the  line  when 
divided,  the  party  desiring  it  may  have  the  same  divided  in  the 
manner  provided  in  the  same  chapter,  and  the  fence-viewers  may 
in  Avriting  assign  a  reasonable  time,  having  regard  to  the  season 
of  the  year,  for  making  the  fence  ;  and  if  the  occupant  complained 
of  does  not  make  his  part  of  the  fence  within  the  time  assigned, 
the  other  party  may,  after  having  made  up  his  part  of  the  fence, 
make  up  the  part  of  the  other,  and  recover  therefor  double  the 
expense  thereof,  together  with  the  fees  of  the  fence-viewers. 

Where  a  division  fence  between  the  owners  of  improved  lands 
has  been  made  either  by  fence-viewers  or  under  an  agreement  in 
writing  between  the  parties,  recorded  in  the  oftice  of  the  clerk  of 
the  town  or  city,  the  several  owners  of  such  lauds  and  their  heirs 
and  assigns  must  erect  and  maintain  such  fences,  agreeably  to  such 
division  ;  but  if  one  party  lays  his  lands  common  and  determines 
not  to  improve  them,  on  giving  the  other  party  six  months'  notice 
of  such  determination,  he  will  not  be  required  to  support  such 
fences  during  the  time  that  his  lands  lie  common  and  unimproved. 

"When  one  party  ceases  to  improve  his  land  or  lays  open  his 
mclosure,  he  must  not  take  away  any  part  of  the  partition  fence 
belonging  to  him,  and  adjoining  to  the  next  inclosnre,  provided 
the  other  party  will  allow  and  pay  for  his  part  of  such  fence,  and 
where  lands  which  have  lain  uninclosed  are  afterward  inclosed  or 
used  for  depasturing,  the  owner  or  occupant  of  such  lands  must  pay 
for  one-half  of  such  partition  fence,  to  be  ascertained  by  two  or 
more  fence-viewers,  if  the  parties  do  not  agree.  Provision  is  also 
made  for  locating  water  fences  {Ge7i.  Stat,  ch.  25,  §§  10-15). 


STATUTES   OF  MASS.   RESPECTING   FENCES.  42 L 

It  seems  that  the  liability  of  the  owner  or  occupant  of  land, 
which  has  lain  uninclosed,  on  inclosing  or  depasturing  the  same; 
to  pay  for  the  one-half  of  a  partition  fence,  under  the  statute, 
attaches  immediately  upon  such  inclosing.  And  the  right  of  an 
owner,  who  has  erected  a  partition  fence,  to  recover  the  value  of 
one-half  thereof,  against  the  owner  of  adjoining  land,  is  complete 
b}-  the  commencement  of  proceedings  to  have  the  value  of  such 
half  ascertained  by  fence-viewers,  and  cannot  be  defeated  by  a  sale 
of  the  land,  and  a  notice  by  the  purchaser,  that  he  does  not 
intend  to  occupy,  or  improve,  or  inclose  it,  subsequent  to  the 
application  of  the  fence-viewers,  and  notice  of  such  application 
by  them  to  the  original  owner,  though  previously  to  any  farther 
proceedings  by  them  {Field  v.  Proprietors^  etc.,  1  Cush.  i?.,  11). 
By  a  special  act  of  the  General  Court,  the  depasturing  simply  of 
uninclosed  lands  upon  the  island  of  Nantucket,  does  not  render 
the  owner  or  occupant  liable  for  the  erection  of  a  partition  fence 
{Laws  of  1847,  ch.  102). 

There  are  also  full  provisions  of  the  statute  in  respect  to  dis- 
training and  impounding  cattle  doing  damage  upon  the  lands  of 
any  person  that  are  inclosed  with  a  legal  and  sufficient  fence,  and 
the  remedies  and  proceedings  in  such  cases  are  plainly  prescribed 
{Gen.  Stat,  ch.  25,  §§18  et  seq  ;  and  vide  Dexter  v.  Bruce,  4 
Gray's  R.,  345). 

The  statutes  of  Massachusetts  have  an  additional  provision  to 
the  effect,  that  the  fence-viewers  may  determine  whether  a  parti- 
tion fence  is  required  between  the  lands  of  the  respective  occu- 
pants, and  where  the  division  line  is  in  dispute  or  unknown,  they 
may  designate  a  line  on  which  the  fence  shall  be  built,  and  may 
employ  a  surveyor  therefor,  if  necessary ;  and  for  the  purposes  of 
maintaining  a  fence,  such  line  will  be  deemed  the  division  line, 
until  it  shall  be  otlierwise  determined  by  judicial  proceedings. 
And  if,  after  a  fence  has  been  built  upon  the  line  thus  designated, 
it  shall  be  judicially  determined  that  the  true  division  line  is  in 
another  place,  each  occupant  is  required  to  remove  his  part  of  the 
fence  to,  and  rebuild  it  upon  such  line ;  and  in  case  either  party 
shall  refuse  or  neglect  to  remove  and  rebuild  his  share  of  the 
fence,  the  other  may  appl_y  to  the  fence-viewers,  the  same  as  in 
the  other  cases  provided,  with  the  like  effect  {Supplement  to  Gen. 
Stat.,  ch.  190).  There  are  certain  unimportant  provisions  in 
respect  to  the  election  and  fees  of  the  fence-viewers,  which  it  is 


422  i^]r  OF  FENCES. 

deemed  nnnecessaiy  to  note,  as  the  statute  is  simple,  and  will 
likely  be  well  understood  by  those  officers,  who  have  a  personal 
interest  in  the  subject. 

Under  the  statute  providing  that  any  person  injured  by  cattle 
in  his  lands,  "  that  are  inclosed  with  a  legal  and  sufficient  fence," 
may  maintain  trespass  against  the  owner  of  the  cattle,  or  distrain 
them,  it  was  held  by  the  Supreme  Judicial  Court,  that,  where  cat- 
tle unlawfully  going  at  large  in  a  highway  broke  into  a  close 
adjoining  thereto,  the  owner  of  the  land  was  entitled  to  such 
remedies,  although  the  land  was  not  inclosed  with  a  sufficient 
fence  against  the  highway,  he  not  being  bound  to  fence  against 
cattle  unlawfully  at  large  in  the  highway.  And  it  was  decided 
that,  where  cattle  break  into  a  close,  the  owner  of  the  close  has  a 
remedy  under  the  process  of  distress  for  damage  done  by  the  cat- 
tle to  personal  property  therein.  The  court  also  declared,  that 
appraisers  appointed  to  estimate  the  damage  done  by  cattle  dis- 
trained dannage-feasant^  are  not  limited  to  the  amount  of  damages 
claimed  by  the  owner  of  the  close  in  the  notice  of  distress  given 
by  him  to  the  owner  of  the  cattle.  The  owner  of  the  close  hav- 
ing impounded  a  horse  doing  damage  therein,  sent  a  notice  to  the 
owner  of  the  horse,  containing  these  words :  "  I  have  taken  up  as 
an  estray,  doing  damage  in  my  inclosure,  a  horse  belonging  to 
you,"  "  and  my  damages  are  six  dollars."  The  court  held,  that  a 
sale  of  the  horse,  in  the  manner  prescribed  by  statute,  in  the  case 
of  animals  taken  up  darnage-feasayit,  was  nevertheless  valid,  the 
word  "  estray  "  not  being  used  technically  in  such  notice  {Lyman 
V.  Gqyson,  18  Pick.  R.,  422). 

AYhere  a  jury  were  instructed,  that  towns  were  not  ordinarily 
bound  by  law  to  fence  their  roads,  but  were  afterward  instructed, 
that  towns  were  bound  to  erect  fences  or  railings  at  places  which 
would  otherwise  be  unsafe  or  inconvenient  for  travelers  exercising 
ordinary  care,  the  Supreme  Judicial  Court  lield  that  there  was  no 
'egal  exception  to  the  instruction  {Collins  v.  Dorchester,  6  Gush. 
R.,  396). 


STATUTES   OF  R.  I.    RESPECTING   FENCES.  423 


CHAPTER  XXXYL 

STATUTES    OF  THE    SEVERAL    STATES    RESPECTING    FENCES LAWS    OF 

RHODE  ISLAND LAWFUL    FENCES    THEREIN RULES   RELATING  TO 

PARTITION    FENCES RULES    RELATING    TO  WATER    FENCES LAWS 

OF  CONNECTICUT RULES  IN  RESPECT  TO  LINE  OR  PARTITION  FENCES 

DECISIONS   OF    THE  COURTS     UPON    TUB    SUBJECT FENCES  ALONG 

THE    SIDES    OF    RAILWAYS RULE    RESPECTING    FENCING    OF    HOME- 
STEAD  FENCING  OF  COMMON  LANDS. 

In  the  State  of  Eh  ode.  Island  the  following  are  declared  to  be 
lawful  fences,  viz. :  A  hedge  with  a  ditch  three  feet  high  upon 
the  bank  of  the  ditch,  well  staked,  at  the  distance  of  two  feet  and 
a  half,  bound  together  at  the  top,  and  sufficiently  filled  to  prevent 
Btnall  stock  from  creeping  through ;  and  tlie  bank  of  the  ditch  not 
less  than  one  foot  above  the  surface  of  the  ground.  A  hedge 
without  a  ditch  is  required  to  be  four  feet  high,  staked,  bound 
and  tilled,  as  a  hedge  with  a  ditch ;  a  post  and  rail  fence  on  the 
bank  of  a  ditch  four  rails  high,  each  well  set  in  posts,  and  not  less 
than  four  feet  and  a  half  high  ;  a  stone- wall  fence  four  feet  high, 
with  a  flat  stone  hanging  over  the  top  thereof,  or  a  good  rail  or 
pole  thereon,  well  staked  or  secured  with  crotchets  or  posts ;  a 
stone  wall  without  such  flat  stones,  rails  or  posts  on  the  top  is 
required  to  be  four  feet  and  a  half  higli ;  and  all  other  kinds  of 
fences  are  required  to  be  four  feet  and  a  half  high. 

All  partition  fences  are  required  to  run  on  the  dividing  line, 
and  the  owners  have  the  ]-ight  to  place  one-half  of  the  widtli 
thereof  on  the  land  of  each  adjoining  proprietor.  Such  fences  are 
to  be  kept  up  and  maintained  in  good  order  through  the  year, 
unless  the  parties  concerned  otherwise  agree.  Partition  fences 
between  lands  under  improvement  must  be  made  and  maintained 
in  equal  halves,  in  length  and  quality,  by  the  respective  proprie- 
tors. Where  a  proprietor  shall  improve  his  land,  the  land  adjoin- 
ing being  unimproved,  he  must  make  the  whole  partition  fence; 
and  when  the  adjoining  proprietor  or  possessor  shall  afterwai-d 
improve  his  land,  he  is  required  to  pay  for  one-half  of  the  partition 
fence,  according  to  the  value  thereof  at  that  time;  and  thereafter 
both  proprietors  are  required  to  maintain  their  respective  propor- 
tions of  the  line  fence,  whether  they  shall  continue  to  improve 
tlieir  lands  or  not. 


424  LAW  OF  FENCES. 

Coterminous  owners  or  possessors  of  land  adjoining  water,  when- 
ever their  land  is  under  improvement,  are  required  to  make  and 
maintain  a  sufficient  water  fence  to  prevent  trespass  of  each  other's 
cattle,  in  the  same  manner  as  other  partition  fences  are  directed 
to  be  made.  In  all  cases  where  partition  fences  are  erected  by  the 
agreement  of  the  parties  in  interest,  or  other  lawful  manner,  the 
proprietors  of  the  fences,  their  heirs  or  assigns,  may  hold  and 
improve  the  same  without  molestation,  and  will  be  excused  after- 
ward from  making  other  fence  on  such  dividing,  except  by  the 
special  agreement  of  the  parties  to  the  contrary.  All  agreements 
in  regard  to  division  fences  are  required  to  be  registered  in  the 
town  clerk's  office.  All  tracts  of  marsh  land,  so  situated  and 
exposed  to  the  flow  or  wash  of  the  sea  as  to  render  it  impracti- 
cable for  the  several  owners  thereof  to  keep  up  paitition  fences 
around  the  respective  shares  or  lots,  are  exempted  from  the  opera- 
tion of  the  statute  in  respect  to  partition  fences ;  but  remedies  are 
prescribed  in  cases  of  trespasses  on  such  lands.  In  cases  of  con- 
troversy in  i-espect  to  partition  fences,  and  the  right  of  the  parties 
therein,  or  their  obligations  to  maintain  the  same,  the  same  is  to 
be  settled  by  a  fence-viewer  of  the  town ;  and  the  proceedings 
thereon  are  all  definitely  pointed  out  by  the  statute  {Ge7i.  Stat,  of 
1872,  ch.  94). 

It  has  been  held  by  the  Supreme  Court  of  the  State  that,  upon 
an  application  to  a  fence-viewer  of  a  town,  under  the  statute,  to 
settle  a  controversy  about  the  rights  of  occupants  of  land  in  parti- 
tion fences,  and  their  obligation  to  maintain  the  same,  all  that  the 
fence-viewer  can  do  is,  after  due  notice,  to  determine  the  rights  of 
the  respective  parties,  by  assigning  to  each  his  share  of  the  fence, 
and  to  direct  tlie  time  within  which  each  shall  erect  or  repair  the 
same ;  and  it  was  declared  that  such  fence-viewer  could  not,  upon 
such  application  and  notice,  proceed  to  mulct  either  party  for 
neglecting  or  refusing  to  obey  his  order.  And  it  was  further 
decided  that,  to  warrant  the  proceedincrs  under  the  fifth  section  of 
the  statute,  it  is  necessary  tiiat  there  should  be  a  complaint  to  the 
fence-viewer  of  the  neglect  or  refusal  by  an  occupant  to  rebuild  or 
repair  his  share  of  a  partition  fence,  and  a  determination  by  the 
fence-viewer,  after  dne  notice  to  the  party  complained  against, 
that  the  complaint  is  true,  and  an  assignment  of  time  within  which 
the  neglecting  party  may  perform  his  duty;  and  although  no 
notice  is  in  terms  required  by  the  statute  to  be  given  to  the  deliu- 


STATUTES   OF  CONX.    RESPECTING   FENCES.  425 

quent  occupant,  when,  under  the  provisions  of  the  sixth  section, 
the  fence-viewer  proceeds  to  ascertain  the  cost  to  the  comphiinant 
of  rebuilding  or  repairing  the  fence,  yet  sucli  notice  is  required  by 
the  principles  of  natural  justice,  and  the  judgment  and  certificate 
of  tlie  fence-viewers  will  be  void  without  it  {Ft-anldui  v.  Wells, 
6  R.  L  R.,  422). 

The  Supreme  Court  of  the  State  has,  also,  recently  held  that 
a  town  is  not  ordinarily  bound  to  fence  its  roads ;  and  where  a 
highway  connected  with  a  private  way,  and  there  was  a  defect  in 
the  private  way  some  fifty  to  one  hundred  feet  from  the  junction 
of  the  two  ways,  it  was  held  that  the  town  was  not  liable  for  an 
accident  happening  to  one  who  drove  off  by  mistake  upon  the 
private  way,  and  was  injured  by  reason  of  such  defect,  although 
there  was  no  fence  or  other  mark  to  show  the  deviation  of  the 
private  way  {Chapman  v.  Town  Treasurer  of  Ciimherkuid,  10  R. 
I.  R.,        ;  ^.  C,  8  Alh.  L.  J.,  267). 

By  the  statutes  of  Connecticut  the  proprietors  of  lands  are 
required  to  make  and  maintain  sufficient  fence  or  fences  to  secure 
their  particular  fields  and  inclosures ;  and  a  rail  fence  four  feet 
and  a  half  high,  a  stone  wall  four  feet  high,  well  and  substantially 
erected,  and  any  other  fence,  either  of  rails,  boards,  hedge,  ditch, 
brooks,  rivers  or  creeks,  wdiicli,  in  the  judgment  of  fence- viewers, 
shall  be  equal  to  a  rail  fence  four  feet  and  a  half  high,  will  be 
deemed  a  sufficient  and  lawful  fence  {Revised  Statutes  (j/lSGC,  ch. 

21,  §  1). 

The  Superior  Court  of  the  State,  as  early  as  1791,  declared  the 
duty  of  proprietors  of  adjoining  lands  where  the  line  is  such  that 
no  fence  can  be  made,  and  decided  that,  where  a  private  river 
divided  between  adjoining  proprietors,  no  division  fence  could  be 
made  in  the  line,  and  hence  the  case  should  be  ruled  by  principles^ 
of  reason  and  justice.  The  court  accordingly  held  that  the  owner 
of  cattle  in  such  case  was  required  to  so  keep  them  as  to  prevent 
their  injuring  the  property  of  others  {Blssell  v.  Southworth,  1 
Booths  R.,  269).  There  is  now,  however,  a  statute  upon  the  sub- 
ject, by  which  it  is  provided  that  where  the  dividing  line  between 
adjoining  proprietors  shall  be  a  river,  brook,  pond  or  creek,  which 
is  not  a  sufficient  fence,  and  it  is  impracticable  to  make  the  fence 
in  the  line,  if  either  party  shall  refuse  to  make  a  divisional  fence  on 
one  side  or  the  other,  then  either  two  of  the  selectmen  of  the 
town  shall,  on  application  of  either  party,  desirous  of  making  such 
51 


426  LA  W  OF  FEXCES. 

fence,  determine  on  which  side  thereof  tlie  fence  shall  be  erected 
and  maintained,  or  whether  partly  on  one  side  and  partly  on  the 
other,  and  what  part  each  shall  make  and  maintain,  and  deliver 
their  determination  in  writing  to  the  parties ;  and  if  either  of  the 
parties  shall  refuse  to  make  and  maintain  his  part  of  the  fence, 
tlie  other  may  proceed  as  is  provided  in  the  act  {R.  S.,  ch.  21,  §  6). 

Where  adjoining  proprietors  inclose  their  land  in  severalty, 
each  is  required  to  make  and  maintain  one-half  of  the  divisional 
fence;  and  where  adjoining  proprietors  make  a  divisional  fence  of 
posts  and  rails,  boards,  or  a  hedge  fence,  each  will  be  allowed 
twelve  inches  from  the  dividing  line  to  break  the  ground  to  set 
in  the  posts  and  stakes ;  but  the  posts  are  required  to  stand  in  the 
dividing  line;  and,  in  making  a  stone  wall  or  other  straight  fence, 
each  proprietor  will  be  allowed  to  set  one-half  of  the  width  on 
each  side  of  the  dividing  line,  npou  the  land  of  the  adjoining  pro- 
prietor; and,  in  making  a  worm  or  crooked  rail  fence  between 
adjoining  proprietors,  each  proprietor  will  be  allowed  to  set  one- 
half  of  the  width  on  each  side  of  the  dividing  line,  upon  the  land 
of  the  adjoining  proprietor,  provided  it  does  not  exceed  three  feet 
from  the  division  line;  and  except,  in  case  of  house  or  home  lots, 
four  feet  will  be  allowed  for  a  ditch  from  the  dividing  line ;  but 
the  party  making  the  ditch  is  required  to  lay  the  bank  upon  his 
own  land  {R.  S.,  ch.  21,  §  2). 

The  Supreme  Court  of  Errors  of  the  State  decided,  in  1827, 
that,  where  a  party,  having  made  a  ditch  six  feet  wide  through 
his  land,  conveyed  a  part  of  such  land,  bounding  the  grantee  on 
the  ditch,  the  grant  extended  to  the  center  of  the  ditch  ;  and  that, 
in  such  case,  the  ditch  was  to  be  treated  as  a  common  fence,  sub- 
ject to  be  repaired  by  either  party,  preserving  its  width.  But,  in 
making  repairs,  it  was  decided  that  one  party  has  not,  by  law,  a 
right  to  break  and  dig  up  the  ground  four  feet  from  the  center  on 
to  the  other's  land,  throwing  on  to  his  own  land,  as  a  bank,  the 
earth  so  dug  up  (  Warner  v.  Souihworth^  6  Conn.  R.,  471). 

The  Supreme  Court  of  Errors  have  impliedly  decided  what  is  a 
divisional  fence  within  the  statute.  In  the  case  before  the  court, 
it  appeared  that  the  plaintiff  and  defendant  owned  adjoining 
lands  fronting  on  a  street ;  there  was  no  fence  on  the  line  between 
the  parties.  The  defendant,  in  erecting  his  front  fence  on  the 
line  of  the  street,  which  was  coincident  with  the  plaintiff's  front 
line,  placed  a  post  on  the  end  of  the  dividing  line  next  the  street, 


STATUTES   OF  CONN.    RESPECTING   FENCES.  427 

SO  that  part  of  it  stood  on  the  plaintiff's  land  and  part  on  the 
defendant's  land.  The  court  held  that  the  defendant  was  not 
erecting-  a  divisional  fence,  but  his  own  front  fence ;  and  as  the 
statute  relating  to  fences  is  applicable  to  divisional  fences  only, 
the  defendant  was  not  protected  by  that  statute,  and,  of  course,  was 
liable  as  a  ti-espasser.  Storrs,  J.,  who  delivered  the  opinion  of 
tlie  court,  regarded  the  case  as  one  of  very  considerable  practical 
ini])ortance,  especially  in  thickly  settled  places,  where  the  owners 
of  adjoining  lands  might  choose  to  erect  different  kinds  of  fences 
in  front  of  them ;  and  it  was  thought  that  much  conflict,  injustice 
and  inconvenience  might  ensue  from  the  adoption  of  the  contrary 
principle.  All  the  other  judges  ultimately  concurred  in  this  view, 
although  Hinman,  J.,  had  a  different  impression  of  the  law  at  first 
{UuUell  V.  Peck,  15  Conn.  B.,  133,  136). 

If  one  proprietor  shall  first  occupy  his  land,  and  make  the  whole 
fence,  and  afterward  the  adjoining  proprieter  shall  occupy  the 
adjoining  land,  by  particular  inclosnre,  the  statute  provides  that 
the  latter  shall  purchase  one-half  of  the  divisional  fence,  and  main- 
tain the  same  ;  and  if  the  parties  do  not  agree  in  dividing  and 
appraising  such  fence,  the  part}^  aggrieved  may  call  on  the  select- 
men of  the  town,  or  a  major  part  of  them,  who  may  divide  and 
set  out  to  each  party,  his  equal  proportion  of  said  fence,  and 
determine  how  much  the  party  last  occupying  shall  pay  for  the 
fence  to  the  party  erecting  the  same ;  the  account  of  which,  under 
the  hands  of  the  selectmen,  is  made  sufficient  evidence  for  the 
party  who  erected  said  fence,  to  recover  the  same  from  the  party 
last  occupying  as  aforesaid  (i?.  S.,  ch.  21,  §  3). 

The  Supreme  Court  of  Errors  have  decided  that  a  parol  parti- 
tion of  a  divisional  fence,  by  adjoining  proprietors,  is  valid  {George 
V.  Shatton,  29  Conn.  R.,  421).  And  the  same  court  have  decided 
that  the  fence-viewers  are  the  sole  judges  in  questions  respecting 
the  sufficiency  of  fences,  and  are  to  decide,  by  direct  examination, 
without  any  formal  hearing,  or  trial,  whether  an  existing  fence  is 
or  is  not  such  as  the  statute  requires  {Fox  v.  Beebee,  24  Conn.  JR., 
271). 

It  is  also  provided  by  statute  that  whenever  there  has  been  a 
fence  between  adjoining  proprietors,  which  has  never  been  divided, 
and  either  party  refuses  to  divide  the  same,  the  other  party  may 
call  on  the  selectmen  to  make  a  division,  and  the  selectmen  are 
required  to  set  out  the  better  part,  if  any  there  be,  to  him  whc 


428  -^^^    ^^  FEXCES. 

erected  it,  or  holds  under  him  who  erected  it ;  and  the  cost  mast 
be  paid  by  the  party  who  willfully  refuses  to  make  such  division, 
to  be  recovered,  in  a  proper  action,  by  the  other  party ;  and  a  cer- 
tificate of  the  amount  of  such  cost,  under  the  hand  of  the  select- 
men, is  made  sufficient  evidence ;  and  the  division  of  fences  made 
as  thus  provided,  and  recorded  in  the  records  of  the  town  where 
the  land  lie,  will  be  valid  and  binding  on  the  parties  {R.  S.,  ch. 

21,  §  4). 

If  any  person,  who  ought  to  maintain  any  divisional  fence,  shall 
refuse  or  neglect  to  keep  it  in  sufficient  repair,  the  party  aggrieved 
may  call  on  the  fence-viewers,  to  view  the  same,  and  if  they  find 
such  fence  to  be  insufficient,  they  are  required,  without  delay,  to 
give  notice,  in  writing,  of  such  insufficiency,  to  the  person  or  per- 
sons who  are  bound  to  repair  it ;  and  if  he  or  they  do  not, 
wdthin  fifteen  days,  put  the  same  in  sufficient  repair,  then  the 
party  aggrieved  may  do  it ;  and  where  the  same  shall  be  com- 
pleted, and  judged  sufficient  by  the  fence-viewers,  they  are 
required  to  estimate  the  value  of  such  repairs,  and  make  a  certi- 
ficate thereof,  under  their  hands,  with  an  account  of  their  fees ; 
and  the  party  aggrieved  may  recover  of  the  party  who  ought  to 
have  made  such  repairs,  double  the  value  of  such  repairs,  together 
with  the  fees  of  the  fence-viewers ;  and  on  his  neglect  or  refusal 
to  make  payment  thereof,  for  thirty  days  after  it  shall  be  demanded, 
the  party  aggrieved  may  sue  for  and  recover  the  same,  by  an 
action  on  the  case  (/?.  S.,  ch.  21,  §  5). 

The  Supreme  Court  of  Errors  have  decided  that  an  action  on 
the  statute  concerning  fences,  to  recover  double  the  value  of 
repairs  made  pursuant  to  the  fifth  section  of  that  statute,  is  "  an 
action  on  the  case,"  within  the  meaning  of  the  same  statute.  And 
where  it  was  averred,  in  such  action,  in  one  count,  that  the  plain- 
tilT  and  defendant  being  adjoining  proprietors  of  certain  tracts  of 
land,  the  defendant  neglected  and  refused  to  keep  in  repair  the 
divisional  fence  between  these  tracts,  Avithout  any  covenant  that 
it  was  the  duty  of  the  defendant  to  keep  such  fence  in  repair,  the 
court  held  the  count  fatally  defective.  But  when  it  was  averred  in 
another  count,  that  the  plaintifi"  and  defendant  being  adjoining 
proprietors,  the  defendant  neglected  and  refused  to  keep  in  repair 
that  part  of  the  divisional  fence  which  he  was  bound  to  maintain 
and  keep  in  repair,  the  court  held  the  count  sufficient,  especially 
after  verdict.     The  court  held  that  in  such  an  action,  it  is  suffi- 


STATUTES   OF  CONN.    RESPECTING   FENCES.  429 

cient  for  the  plaintiff  to  bring  his  case  within  the  express  pro- 
visions of  the  statute  {Sharp  v.  Curtiss,  15  Co)i7i.  R.,  526), 

The  Supreme  Court  of  Errors  have  also  held  that  under  the  sec- 
tion of  the  statute  last  under  consideration,  it  is  not  necessary  that 
the  fence-viewers  should  give  notice  to  the  delinquent  party  of 
their  meeting  to  estimate  the  value  of  the  repairs  {Edgarton 
V.  Moore,  28  Conn.  B.,  600).  The  same  court  had  previously 
held  that  fence-viewers  are  not  judicial  officers ;  that  their 
functions  are  more  analogous  to  those  of  appraisers  and 
inspectors,  and  other  boards  of  that  character,  than  of  judges  or  of 
courts ;  and  that  no  notice  whatever  need  be  given  of  their  first 
examination  of  the  defective  fence  until  after  it  has  been  made. 
And  it  was  held  in  the  same  court  that,  where  fence-viewers 
find  a  divisional  fence  to  be  insufficient,  their  notice  to  the  per- 
sons bound  to  repair  it  need  not  specify  the  particulars  in  which 
it  is  defective ;  and,  further,  that,  where  a  divisional  fence  is 
found  by  the  fence-viewers  to  be  insufficient,  and  the  person  bound 
to  repair  it  neglects  to  do  this  for  fifteen  days  after  notice  in  writing 
from  the  fence-viewers,  the  party  aggrieved  may  repair  it  in  any 
reasonable  manner,  and  the  expense  may  be  allowed  by  the  fence- 
viewers.  It  appeared  in  such  action  that  the  defendant's  part  of 
the  fence  was,  and  for  more  than  fifteen  years  had  been,  a  ditch 
which  he  had  dug ;  and  that  the  plaintifl"  had  performed  no  work 
upon  such  ditch,  but  had  erected  a  fence  of  posts  and  boards  on  or 
near  the  edge  of  the  ditch,  in  the  dividing  line  between  the  lands 
of  the  parties,  and  the  fence-viewers  certified  that  the  sum  of 
twenty-three  dollars  and  eighty-seven  cents  was  the  value  of  the 
repairs  made  by  the  plaintiff  upon  the  defendant's  fence.  The 
court  held  that  the  plaintiff  was  not  required  by  law  to  make  the 
necessary  repairs  of  such  fence  by  enlarging  the  ditch,  but  might 
make  them  in  any  reasonable  manner,  and,  therefore  that  he  was 
entitled  to  recover  {I^ox  v.  Beebee,  2-i  Conn.  B.,  271).  And  the 
same  court,  at  a  later  term,  held  a  notice  of  the  insufficiency  of  a 
fence,  signed  by  two  out  of  three  fence-viewers,  to  be  sufficient, 
where  all  the  fence-viewers  had  been  notified  to  be  present  and 
act ;  and  various  other  points  in  reference  to  the  notice  were 
settled  in  the  same  case.  For  example,  that  reasonable  certainty 
is  all  that  is  required  in  the  description  of  the  fence  in  such  a 
notice.  A  notice  given  by  the  fence-viewers  was  a  follows:  "Mr. 
S,,  you  will  take  notice  that  the  undersigned,  fence-viewers  of  the 


430  i^TF  OF  FENCES. 

town  of  W.,  have  been  called  on  by  G.  to  view  the  fence  between 
his  land  and  yours ;  and  on  a  view  we  find  your  portion  of  the 
fence  insufficient ;  and  if  you  do  not  repair  the  same  within  fifteen 
days  the  said  G.  will  repaii  the  same  at  your  expense."  It  appeared 
that  there  was  other  land  of  S.  adjoining  that  of  G.  within  the 
same  town,  but  that  there  had  been  no  complaint  made  b^^  G.  to 
S.  of  the  fence  in  question,  and  that  S.  had  some  time  before  com- 
menced repairing  it  upon  a  former  notice  from  the  fence-viewers ; 
and  that,  in  fact,  S.  was  not  in  doubt  M-hat  fence  was  intended. 
The  court  held  that,  in  the  circumstances,  the  notice  was  not 
insufficient  in  not  specifying  the  particular  fence  intended.  It  was 
further  held  that  the  notice  was  not  insufficient  in  not  stating  the 
particular  part  of  the  fence  which  belonged  to  S.  And  also,  that 
it  was  not  insufficient  in  not  stating  when  the  fifteen  days,  limited 
for  reparation  of  the  fence  by  S.,  began  to  run.  It  was  declared 
to  have  been  the  intention  of  the  Legislature  to  allow  fifteen  days 
from  the  time  of  the  service  of  the  notice ;  and  it  was  held  that 
the  notice  should  be  in  writing,  but  that  the  service  of  it  may  be 
entirely  informal ;  that  a  duly  authenticated  notice,  left  at  the 
dwelling-house  of  the  party  is  sufficient;  and  such  a  notice  was 
held  to  be  sufficient,  although  the  party  was  absent  at  the  time 
from  the  State.  And  where  a  notice  was  received  by  a  party 
while  out  of  the  State,  it  was  held  to  operate  upon  him  in  the 
same  manner  as  if  received  within  the  State  {Grcgor  v.  Stratton^ 
29  Conn.  B.,  421). 

The  statute  provides  that  whenever  there  is  not,  or  shall  not 
have  been  a  division  fence  between  any  two  adjoining  proprietors, 
whose  lands  are  otherwise  inclosed  in  severalty,  or  where,  by  dis- 
tribution, sale  or  otherwise,  a  particular  inclosure  shall  be  divided 
between  two  or  more  proprietors,  and  either  shall  desire  to  have 
a  division  fence  erected  between  him  and  the  adjoining  proprietor 
or  proprietors,  and  the  parties  cannot  agree,  any  two  of  the  fence- 
riewers  of  the  town  where  such  land  is  situated  (and  if  the  same 
is  situated  in  more  than  one  town,  then  one  fence- viewer  from 
each  town  in  which  it  is  situated)  may  view  said  dividing  line, 
first  giving  reasonable  notice  of  the  time  when  they  will  meet  for 
that  purpose  to  said  proprietors;  and  if  said  fence-viewers  shall 
deem  it  reasonable  that  said  fence  should  be  erected  at  the  expense 
of  each  of  said  adjoining  proprietors,  they  shall  divide  and  stake 
out  said  line,  and  assign  to  each  his  portion  thereof,  and  limit  a 


STATUTES   OF  CONX.    RESPECTING   FENCES.  431 

time  within  which  the  fence  tliereon  shall  be  erected ;  and  each 
proprietor  is  reqnired  to  erect  a  lawful  fence  on  the  portion  of 
said  line  so  set  to  him ;  and  if  either  of  said  proprietors  shall 
make  his  portion  of  said  fence,  and  the  other  proprietor  or  pro- 
prietors shall  neg-lect  to  build  his  or  their  poi'tion  within  the  time 
limited,  the  fence-viewers  may  build  the  same,  or  may  authorize 
or  direct  the  proprietor  who  has  erected  his  portion  to  build  the 
same ;  and  when  said  fence  is  so  built  by  said  fence-viewers,  or 
by  said  proprietor,  they  or  he  may  recover  the  expense  thereof, 
and  the  fees  of  the  fence-viewers  therefor,  in  an  action  of  debt  on 
the  statute  {R.  S.,  ch.  21,  §  7). 

It  has  been  decided  by  the  Supreme  Court  of  Errors  that  fence- 
viewers,  empowered  by  this  provision  of  the  statute  to  order  a 
fence  made  upon  the  dividing  line  between  adjoining  proprietors, 
and  to  divide  and  stake  out  the  line  for  that  purpose,  have  no 
power  to  fix  the  line  where  it  is  disputed  or  uncertain  ;  but  that 
this  duty  belongs  wholly  to  the  committee  of  freeholders  provided 
for  by  another  statute ;  and  it  was  declared  and  held,  where  the 
fence-viewers  order  a  fence  made  upon  a  line  which  is  not  the  true 
line  between  the  parties,  that  their  action  is  void  i^alcott  v.  Still- 
man^  28  Conn.  M.,  193).  Where  a  town  has  elected  but  a  single 
selectman,  and  he,  as  such,  had  acted  in  the  division  of  a  fence 
between  adjoining  proprietors,  under  the  statute  which  confers 
power  on  the  "selectmen"  of  a  town  so  to  act,  but  had  acted  at 
the  request  of  both  parties,  the  court  held  that,  whether  or  not  he 
had  the  full  power  of  a  board  of  selectmen  in  the  matter,  no 
objection  could  be  taken  to  his  want  of  such  power  {Kellogg  v. 
Brown^  32  Conn,  i?.,  108).  And  it  has  been  more  recently  held 
that  the  fence-viewers,  provided  by  statute  mentioned,  are  quasi 
public  officers ;  and  the  fact  that  they  have  acted  officially  is  pre- 
sumptive evidence  of  their  appointment  and  qualifications  {IIol- 
lister  V.  Ilollister,  35  Conn.  IL,  241). 

It  is  also  provided  by  statute  that  whenever  by  sale,  distribution, 
partition,  or  otherwise,  a  particular  inclosure  has  been  or  shall  be 
divided  between  two  or  more  persons,  and  the  parties  in  interest 
cannot  agree  respecting  the  division  of  a  fence  belonging  to  said 
inclosure,  or  whenever  adjoining  proprietors  cannot  agree  respect- 
ing the  division  of  an  existing  fence,  and  there  is  no  record  of  any 
division  of  such  fence,  any  of  such  parties,  or  any  such  adjoining 
proprietors,   may  call  out  any  two  of  the  fence-viewers  in  the 


432  LAW  OF  FENCES. 

town  wJiere  sucli  fence  is  sitnated,  and  if  the  same  is  situated  in 
two  towns,  one  of  said  fence-viewers  sliall  be  from  each  town  ; 
and  said  fence-viewers  are  required  to  view  the  fence,  and  make 
such  divisions  and  apportionments  thereof  as  may  be  necessary  to 
do  justice  to  all  the  parties,  and  award  in  favor  of  such  parties, 
and  against  such  parties,  as  they  shall  deem  just,  such  sums  as  in 
their  judgment  shall  be  reasonable,  to  be  recovered  in  an  action 
of  debt ;  such  award  must  be  in  writing,  signed  by  such  fence- 
viewers,  describing  such  division  and  apportionments,  and  limiting 
a  time  for  the  payment  of  the  sums  awarded,  and  the  same  must 
be  recorded  in  the  records  of  the  town  or  towns  where  such  fence 
is  situated;  and  said  apportionments  and  award  will  not  be 
invalid  in  consequence  of  any  inaccuracy,  if  the  location  of  such 
division,  the  respective  parties,  and  the  sums  awarded,  can  be 
understood  {E.  S.,  ch.  21,  §  8). 

Where  the  plaintiff,  in  an  action  founded  on  this  section  of  the 
statute  concerning  fences,  to  recover  the  sum  awarded  to  him  by 
the  fence-viewers,  alleged  that  he  and  the  defendant  were  owners 
of  inclosed  lands,  separated  by  a  stone  wall,  which  was  originally 
built  entirely  by  W.,  under  whom  the  plaintiff  held,  and  which 
in  consequence  of  a  division  of  the  land  in  July,  1826,  it  became 
the  duty  of  the  defendant  to  unite  with  the  plaintiff  in  dividing, 
and  to  pay  the  plaintiff  such  sum  as  should  be  awarded  by  the 
fence- viewers,  the  Supreme  Court  of  Errors  held  :  1st.  That  these 
facts  did  not  constitute  a  prescription  binding  upon  the  plaintiff, 
being  at  most  only  evidence  of  use.  2d.  That  such  usage  was  not 
of  the  nature  of  a  covenant  which  runs  with  the  land,  through  all 
time,  but  was  temporary,  governing  only  the  immediate  owners 
and  the  land  as  it  tlien  was.  And  the  division  of  inclosed  lands, 
by  sale  or  otherwise,  jprima  facie  subjects  them  to  a  new  division 
of  tlie  fence  among  the  new  owners  ( Wright  v.  Wright,  21  Conn. 
12.,  329). 

It  is  made  unlawful  for  any  person  to  throw  his  inclosure  o])en  to 
the  commons,  and  remove  his  part  of  the  divisional  fence,  without 
the  assent  of  a  majority  of  the  fence-viewers  of  the  town  or  towns 
where  the  same  is  situated,  in  writing,  first  obtained,  and  recorded 
in  said  town  or  towns,  nor  without  giving  three  months'  notice  to 
the  adjoining  proprietor,  which  proprietor  will  have  the  right  to 
purchase  such  part  of  said  fence,  on  paying  the  value  thereof,  to 


STATUTES   OF  COXN.   RESPECTING   FENCES.  433 

be  determined,  if  the  parties  cannot  agree,  by  either  two  of  the 
selectmen  of  the  town  {R.  S.,  cli.  21,  §9). 

It  is  also  provided  by  statute,  that  all  damage  done,  either  in 
particular  inclosures,  or  common  fields,  by  cattle,  horses,  sheep  or 
swine,  where  the  fence  is  sufficient,  shall  be  paid  by  the  owners  of 
them  ;  but  if  the  fence  is  defective,  then  by  the  owners  of  the 
fence  ;  but  where  the  fence  is  defective,  the  owners  of  the  cattle 
shall  pay  the  damage  before  they  are  released  from  the  pounds*,  and 
shall  recover  the  same  of  the  owner  of  the  defective  fence  (A\  6"., 
cA.  21,  §11). 

AVhere  it  appeared  that  the  injury  complained  of,  in  an  action 
of  trespass  far  damage  done  to  the  plaintiff's  land  by  the  defend- 
ant's cattle,  resulted  from  the  want  of  a  sufficient  fence  between 
the  adjoining  lands  of  the  plaintifl  and  defendant,  that  it  was  the 
duty  of  each  of  the  owners  of  these  lands  to  make  and  maintain 
one-half  of  the  divisional  fence,  and  that  the  plaintiff  had  never 
made  his  part,  or  taken  any  measures  toward  it,  the  court  held 
that  the  plaintiff  was  not  entitled  to  recover  {Studwell  v.  R'dcli,. 
14  Conn.  E.,  292).  And  it  has  been  subsequently  held,  that  it  is 
a  legal  incipient  or  appurtenance,  attached  jper  se  to  all  lands 
inclosed  and  holden  in  severalty,  running  with  them  perpetually, 
and  unaffected  by  ulterior  divisions  and  subdivisions,  that  each  of 
the  adjoining  proprietors  shall  make  and  maintain  one-half  of  the 
division  fence  {Wright  v.  Wright,  21  Conn.  R.,  329). 

The  statute  also  provides  that  no  person  shall  be  entitled  to  a 
recovery  for  damages  done  in  his  inclosure  through  the  insuffi- 
ciency of  his  fence,  unless  such  damages  were  done  by  swine  or 
horses,  or  other  creatures  that  go  at  large  on  the  commons  con- 
trary to  law,  or  by  unruly  cattle  that  will  not  be  restrained  by 
ordinary  fences ;  or  unless  the  owner  of  cattle  shall  put  liis  cattle 
into,  or  voluntarily  trespass  on  his  neighbor's  inclosure;  or  unless 
it  shall  appear  that,  though  part  of  the  fence  is  deficient,  the  cattle 
broke  and  entered  through  a  sufficient  fence ;  in  which  case,  the 
owner  of  the  land  may  impound  such  creatures,  and  recover 
poundage  and  damages  {R.  S.,  ch.  21,  §  12). 

The  Supreme  Court  of  Errors  of  the  State  have  recently  heldl 
that  the  statutes,  with  regard  to  fences,  have  left  the  common  law,, 
in  regard  to  the  duty  of  the  owners  of  cattle  to  restrain  them,, 
still  in  force  as  to  unruly  cattle  that  will  not  be  restrained  by 
ordinary  fences;  and  that  landownei-s  in  Connecticut  are  not 
55 


434  LAW  OF  FENCES. 

bound  to  fence  against  such  cattle.  The  court  furtlier  held  that 
"  ordinary  fences,"  in  the  statute,  which  speaks  of  "  unruly  cattle 
that  will  not  be  restrained  by  ordinary  fences,"  does  not  mean 
lawful  fences,  but  such  tences  as  are  common,  and  sufficient  to 
restrain  orderly  cattle.  A  part  of  the  divisional  fence  between  the 
plaintiff  and  defendant,  which  it  was  the  duty  of  the  plaintiff  to 
maintain,  was  insufficient.  The  defendant's  horse  was  found  in 
the  plaintiff's  inclosure,  having  jumped  in  from  the  defendant's, 
ov^er  some  part  of  the  plaintift^'s  fence.  The  court  held  that  evi- 
dence that  he  jumped  back  over  a  part  of  the  fence  that  was  of 
lawful  height  was  admissible  to  show  that,  at  the  time  he  et)tered, 
he  was  unruly,  and  not  to  be  restrained  by  an  ordinary  fence 
{llhie  V.  Wooding,  37  Conn.  7?.,  123),  This  doctrine  is  in  accord- 
ance with  an  earlier  case  before  the  same  court,  which  M-as  an 
action  for  a  trespass,  committed  by  the  defendant's  cattle  upon  the 
plaintiff's  land ;  and  the  defense  was  that  the  cattle  entered  from 
an  adjoining  field  of  the  defendant,  through  the  plaintiff's  insuffi- 
cient fence.  It  was  held  that  the  plaintiff'  might  show  that  such 
cattle  Mere  unruly,  which  would  repel  the  defense  {Barnutn  v. 
Vandusen,  16  Co7m..  12.,  200). 

The  proprietoi's  of  land  in  any  field,  established  as  a  common 
field  in  Connecticut,  may  meet  by  themselves  or  by  their  agents, 
and  adopt  regulations  with  respect  to  the  fencing  or  occupying 
such  common  field;  and  they  may  choose  a  committee  to  take  care 
of  and  manage  the  affairs  of  the  common  field,  and  fence-viewers, 
who  must  be  «worn  to  a  (faithful  discharge  of  their  duties.  The 
committee  of  the  field^  or  a  committee  appointed  for  that  pur- 
pose, are  required  to  set  out  to  each  proprietor  his  proportion  of 
the  fence,  and  the  place  where  it  is  to  be  made ;  and  the  proprie- 
tor is  required  by  law  to  make  and  maintain  it,  and  must  observe 
the  orders  of  the  proprietors  for  the  occupation  of  the  common 
field.  Where  the  line  of  a  common  fi.eld  bounds  upon  a  particular 
inclosure,  one-half  of  the  fence  must  be  made  by  the  proprietors 
of  the  common  field,  and  the  other  half  by  the  owner  of  the  par- 
ticular inclosure.  Where  a  common  line  fence  has  been  estab- 
lished it  cannot  be  altered,  except  by  a  vote  of  the  proprietors. 
And  where  any  person  sliall  purchase  land  in  a  common  field,  the 
icommittee  appointed  to  talie  care  of  and  manage  the  field  have 
power  to  set  out  to  such  purchaser  his  proportion  of  the  fence ; 
;and  he  will  be  bound  bQ  maintain  the  same.     Common  fields  are 


STATUTES   OF  CONTT.    RESPECTING   FENCES.  435 

to  be  fenced  in  the  same  manner  as  is  required  in  case  of  particular 
indosures;  and  the  committee  of  the  common  field  may  agree  in 
writing  with  the  proprietors  of  any  particular  inclosure  in  respect 
to  the  line  fences.  The  owners  of  the  fence  in  the  line  of  common 
fence  are  required  to  set  and  keep  up  stakes,  with  the  two  first 
letters  of  their  names  on  them,  to  distinguish  their  part  ot  the 
common  fence,  under  a  penalty  for  neglect  imposed  by  the  statute. 
The  fence-viewers  of  any  common  field  are  required  to  inspect 
the  fences  of  such  field,  and  take  care  that  they  are  kept  in  sufii- 
cient  repair,  whether  such  fences  belong  to  the  proprietors  of  the 
field  or  the  owners  of  the  particular  inclosure  ;  and  the  method  by 
which  this  duty  is  to  be  discharged  is  prescribed  by  the  statute 
{Gen.  Stat.,  tit.  21,  ch.  2,  §§  13-40).  ^ 

The  statute  further  provides  that  every  person  who  shall  wit- 
tingly and  unlawfully  throw  down  or  leave  open  any  bars,  gates, 
fence  or  fences,  belonging  to  any  particular  inclosure  or  common 
field,  shall  pay  to  the  party  injured  double  damages ;  and  a  sum, 
not  exceeding  five  dollars,  according  to  the  nature  and  aggrava- 
tion of  the  trespass,  to  be  recovered  in  an  action  of  trespass  {Gen. 
Stat.,  tit.  1,  ch.  15,  §  364).     And  any  person  who  shall  willfully 
and  maliciously  cut,  injure,  deface  or  throw  down  any  fence  on 
the  land  of  another  is  made  liable  to  be  punished  by  fine  not 
exceeding  one  hundred  dollars,  or  imprisonment  in  a  common  jail 
not  exceeding  twelve  months,  or  by  such  fine  and  imprisonment 
both  {Gen.  Stat.,  tit.  12,  ch.  4,  §  76).     For  similar  damage  doiie  to 
any  fence  in  a  cemetery  or  burying-ground,  the  offender  is  liable 
to  a  fine  not  exceeding  one  hundred  dollars,  or  imprisonment  in  a 
county  jail  not   exceeding   six   months,  or   both   such   fine   and 
imprisonment  {Gen.  Stat.,  tit.  7,  ch.  7,  §  370).     In  respect  to  the 
sufficiency  of  a  statement  of  the  account  referred  to  in  the  section 
of  the  statute  which  provides  for  the  recovery  of   double   the 
expense  of  making  a  fence  for  a  delinquent  proprietor  of  land 
adjoining  a  common  field,  the  court  has  held  that  a  statement 
of  the  appraisal  of  the  fence  at   a  gross  sum,  was  a  sufiicient 
"  account,"  within  the  meaning  of  a  section  of  the  statute  fixing 
the  time  when  double  expenses  might  be  recovered  at  ten  days, 
"after  an  account  shall  be  presented,"  if  the  proprietor  neglects  to 
pay  or  appeal ;  no  objection  to  such  statement  having  been  made 
by  the  defendant  at  the  time  {Ilollister  v.  Hollister,  35  Conn,  i?., 
241). 


436  LAW  OF  FENCES. 

Owners  of  land  adjoining  railroads,  who  may  have  received 
compensation  for  fencing  along  the  line  of  their  land,  are  required 
by  law  to  build  and  maintain  a  lawful  fence  on  said  line,  or  as 
near  thereto  as  they  conveniently  can,  and  if  they  neglect  to  do  so 
within  sixty  days  after  being  notified  to  do  so  by  the  railroad 
company,  such  railroad  company  may  build  the  same,  and  recover 
the  expense  thereof  in  an  action  of  debt  against  the  person  so 
neglecting  to  build  or  maintain  such  fence.  And  every  railroad 
company  is  required  to  erect  and  maintain  good  and  substantial 
fences  on  both  sides  of  its  railroad,  except  at  such  places  as,  in  the 
opinion  of  the  railroad  commissioners,  the  erection  and  main- 
tenance of  the  same  shall  be  inexpedient  or  unnecessary  under  a 
penalty  prescribed  by  the  statute.  And  every  such  railroad  com- 
pany is  required  to  construct  and  maintain  good  and  sufficient 
fences,  on  one  or  both  sides  of  its  road,  where  the  same  runs 
within  the  limits  of  any  public  highway  or  turnpike  road,  or 
adjoining  thereto  ;  and  any  railroad  company  neglecting  or  refus- 
ing to  comply  with  the  orders  of  the  railroad  commissioners  in 
respect  to  said  fences,  is  liable  to  a  penalty  of  $100  for  each  day 
beyond  the  time  limited  by  the  order  of  said  commissioners  in 
which  to  build  or  repair  the  same  {Ge7i.  Stat.,  tit.  7,  ch.  7,  §§488- 
492,  494,  as  atnendedhy  Laws  of  ISQQ,  ch.  87). 

And  by  an  act  approved  July  6th,  1870,  it  is  provided  that 
whenever  adjoining  proj^rietors  of  land  cannot  agree  upon  the 
kind  of  fence  to  be  erected  and  maintained  between  them,  and 
the  land  of  one  of  the  proprietors  is  a  homestead  lot,  or  a  lot  upon 
which  is  a  dwelling-house  within  100  rods  of  the  division  line,  the 
fence-viewers  of  the  town  shall  meet  and  consider  any  proposi- 
tion which  may  be  made  in  respect  to  such  division  fence,  or  any 
portion  of  the  same,  and  the  proprietor  of  the  home  lot  may, 
upon  the  terms  and  conditions  named  by  the  fence-viewers,  erect 
a  better  fence  than  the  law  requires  in  respect  to  the  division  of 
field  lands,  and  the  adjoining  proprietor  must  bear  such  portion 
of  the  expense  as  he  would  bear  for  the  erection  of  a  common 
post  and  rail  fence  or  its  legal  equivalent,  provided  that  if  the 
existing  fence  shall  be  of  any  present  value,  it  must  be  set  out  by 
the  fence-viewers,  according  to  their  appraisal  and  decision,  to  the 
party  having  just  claim  to  the  same.  The  method  of  proceeding 
is  prescribed  by  the  statute  {Laws  of  1S70,  ch.  61). 

In  some  respects  the  laws  of  Connecticut  respecting  fences,  are 


STATUTES   OF  CONX.    RESPECTING    FENCES.  437 

peculiar  to  that  State.  For  example,  in  one  case  before  the 
Supreme  Court  of  Errors,  involving  the  question,  it  appeared  that 
the  plaintitf's  grantor  built  the  entire  fence  originally,  and  the 
plaintiff  and  defendant  had  enjoyed  it  for  more  than  fifteen  years. 
The  court  held  that  this  did  not  show  that  the  plaintiff  was  bound, 
by  prescription,  to  maintain  the  entire  fence  in  its  present  condi- 
tion, for  there  was  nothing  of  an  adverse  character  in  the  user, 
neither  party  having  done  any  more  than  he  was  obliged  to  do, 
in  order  to  the  full  and  secure  enjoyment  of  his  property.  And 
it  was  further  held  that,  if  such  user  could  be  considered  as  evi- 
dence of  an  agreement  of  the  parties  to  that  effect,  during  its  con- 
tinuance, the  evidence  might  be  resisted,  by  showing  why  and 
how  the  user  took  place.  And  it  was  observed  by  the  court,  that 
the  law  of  Connecticut  is  different  from  that  of  Massachusetts  and 
of  England  in  this  respect ;  that  in  Connecticut,  the  owner  or 
occupier  of  the  land  is  obliged  to  fence  it  against  cattle,  at  his  own 
risk,  and  if  his  land  is  not  fenced,  he  can  neither  recover  damages, 
nor  impound  for  a  trespass  by  cattle ;  whereas  in  Massachusetts 
and  in  England,  the  owner  of  the  cattle  must  restrain  them  at  his 
own  risk,  or  he  will  be  liable,  if  they  trespass  upon  the  lands  of 
others  ( Wright  v.  Wright,  21  Conn.  R.,  329). 

In  the  State  of  Connecticut,  the  owner  of  an  inclosure  may 
lawfully  impound  cattle  which  have  broken  into  it  from  an  adjoin- 
ing inclosure  through  the  insufficient  fence  of  the  owner  of  the 
cattle,  although  his  own  part  of  the  divisional  fence  was  also 
insufficient  {Iline  v.  Munson,  32  Conn.  R.,  219). 


438  LAW  OF  FENCES. 


CHAPTER  XXXYIL 

STATUTES     OF  THE     SEVERAL    STATES    KESPECTING  TENCES LAWS    OF 

NEW  JEESEY WHAT  ARE  LAWFUL  FENCES  IN  THE   STATE RULES 

IN    RESPECT    TO    DIVISION   FENCES ROAD    AND    STREET   FENCES    IN 

THE  TOWNSHIP  OF  LINDEN POWERS  OF  THE  TOWNSHIP  COMMIT- 
TEES  LAWS  OF  PENNSYLVANIA WHAT  INCLOSURES  TO  BE  FENCED 

IN  THE    STATE RULES  IN    RESPECT  TO    PARTITION  FENCES PARTY 

WALLS    AND    FENCES    IN    PHILADELPHIA LAWS    OF    DELAWARE 

RULES    IN     RESPECT     TO      PARTITION     AND     OTHER    FENCES    IN    THE 

STATE LAWS  OF  MARYLAND NO  GENERAL  RULES  IN  RESPECT  TO 

FENCES    IN   THE    STATE  —  LAWS  OF  VIRGINIA WHAT  IS  A  LAWFUL 

FENCE  IN  THE  STATE LAWS  OF  WEST  VIRGINIA WHAT  IS  A  LAW- 
FUL FENCE  IN  THE  STATE,  AND  RULES  RESPECTING  DIVISION  FENCES 
THEREIN. 

In  the  State  of  New  Jersey  the  statute  declares  that  all  fences, 
consisting  of  posts  and  rails,  timber,  boards,  brick  or  stone  walls, 
shall  be  esteemed  lawful,  if  four  feet  and  two  inches  high ;  and 
that  all  other  fences  shall  be  lawful,  if  four  feet  and  six  inches 
high,  measuring  from  the  level  or  surfece  of  the  earth,  and  close, 
strong  and  sufficient  to  prevent  horses  and  neat  cattle  from  going 
through  or  under  the  same ;  and  partition  fences,  between  improved 
lands,  are  required  to  be  sufficiently  close  and  strong  as  to  pre- 
vent sheep  from  going  through  or  under  the  same.  Ditches  and 
drains  through  salt  marshes  and  meadows,  five  feet  wide  and 
three  feet  deep,  and,  through  other  meadows,  nine  feet  wide  at  the 
surface  of  the  meadow,  four  feet  and  a  half  wide  at  the  bottom, 
and  three  feet  deep,  and  lying  on  a  mud  or  miry  bottom,  are  also 
adjudged  lawful  fences.  All  brooks,  rivers,  ponds,  creeks  and 
hedges,  or  other  matter  or  thing  equivalent  to  any  such  fence, 
may  be  adjudged  lawful  fences,  at  the  discretion  of  the  town  com- 
mittee called  to  view  the  same.  And  the  owner  of  beasts  tres- 
passing through  or  over  a  lawful  fence,  is  liable  for  the  damages. 
Owners  of  adjoining  lands  are  required  to  maintain  an  equal  pro- 
portion of  the  division  fences,  except  such  as  choose  to  let  their 
lands  lie  open  or  vacant.  And  where  any  person,  bound  to  main- 
tain a  fence,  refuses  or  neglects  to  build  or  repair  his  or  her  part 
of  such  fence,  after  due  notice  to  do  so,  the  other  party  may  build 
or  repair  the  whole  fence,  and  recover  half  of  the  expense  of  the 
negligent  party,  to  be  appraised  and  certified  by  the  town  com- 


STATUTES   OF  N.  J.   RESPECTING   FENCES.  439 

mittee,  with  costs.  In  case  parties  cannot  agree  in  respect  to  the 
division  ot"  the  partition  fence,  the  town  eoinniittee  nnist  settle  it; 
after  due  notice  to  the  parties,  and  after  the  division,  the  share 
set  to  each  will  be  his,  thereafter  to  keep  in  repair  and  maintain. 
When  the  line  between  the  parties  is  a  creek,  brook  and  the  like, 
and  the  parties  cannot  agree  as  to  where  the  division  line  shall  be 
built,  the  same  must  in  like  manner  be  fixed  l)j  the  town  com- 
mittee. 

After  a  line  fence  shall  have  been  built,  and  either  party 
decides  to  let  his  adjoining  land  lie  open  and  common,  he  may 
take  np  his  part  of  the  line  fence,  upon  giving  the  person  in  pos- 
session of  the  adjoining  land  twelve  months'  notice ;  but  not 
otherwise.  Parties  may  in  all  cases  agree  in  writing  in  respect 
to  their  division  fences.  No  person  can  recover  damage  for  tres- 
passes through  a  defective  line  fence  which  he  is  bound  to  main- 
tain ;  but  he  is  made  liable  for  damage  done  by  his  own  beasts  to 
the  adjoining  owner  by  reason  of  his  own  defective  fence. 

Provision  is  made  for  impounding  cattle  trespassing  on  the 
lands  of  one  whose  proportion  of  the  division  fence  is  in  order. 

The  provision  in  respect  to  a  fence  being  sufficiently  close  to 
prevent  sheep  from  going  through  does  not  apply  to  lands  of 
adjoining  owners,  lying  upon  streams  or  rivers,  subject  to  over- 
flow, commonly  known  as  low-meadow  land  ;  and  such  lands  need 
not  be  fenced  against  sheep  except  by  mutual  agreement.  Swing- 
ing gates  may  be  erected  b}^  owners  of  adjoining  lands,  and  the 
same  will  be  considered  a  lawful  fence,  provided  the  same  be  four 
feet  six  inches  high,  and  so  close  as  to  prevent  horses,  cattle  and 
sheep  from  going  through.  The  provisions  of  the  statute  in 
respect  to  division  fences  where  tiie  boundary  is  a  creek,  brook, 
and  the  like,  are  made  applicable  to  private  roads  {Nixoii'd 
Digest,  Uh  ed.,  331-336). 

By  a  special  act  of  the  Legislature,  owners  of  land  within  the 
township  of  Linden,  in  the  county  of  Union,  ai-e  required  to 
maintain  a  legal  fence  along  the  line  of  any  street  or  road  adjoin- 
ing their  lands,  although  such  owners  of  land  are  not  to  be  bound 
to  keep  closed  the  gates  leading  from  such  street  or  road  to  their 
dwelling-houses  {Laws  of  1S70,  ch.  398). 

The  Supreme  Coui-t  of  the  State  has  decided  that,  where  two 
persons  own  adjoining  closes  of  improved  land,  between  whom 
the  partition  fence  has  never  been  divided,  or  the  portion   to  be 


440  ^^^  ^^   FEXCES. 

kept  np  by  each  in  anywise  ascertained,  neither  can  impose  on  the 
other  the  liability,  or  claim  for  himself  the  protection  contem- 
plated by  the  statute  regulating  fences ;  and  if  the  cattle  of  one 
enter  upon  the  close  of  the  other  an  action  of  tres])ass  will  lie 
against  the  owner  of  the  cattle.  And  it  was  further  held,  in  the 
same  case,  that  a  party  may  waive  the  action  given  by  the  statute, 
and  resort  to  his  common-law  remedy  for  his  damages  {Coxe  v, 
Eohhins,  4  HalsL  R.,  384). 

It  seems  that  the  township  committee  have  no  authority  to 
alter  or  change  a  partition  fence ;  they  liave  power  to  fix  the 
place  only  in  a  case  where  none  has  previously  existed  {Miller  v. 
Barnet,  3  iV^.  J.  i?.,  547).  And,  again,  it  appears  the  order  of 
the  committee,  fixing  the  place  of  a  partition  fence,  is  designed 
only  as  a  temporary  regulation  until  the  place  shall  be  legally  set- 
tled, and  to  enable  the  party  making  the  fence  to  recover  from  the 
other  his  proportion  of  the  expense  {Corlis  v.  Little,  13  N.  J.  7?., 
229).  It  may  be  added  that  in  the  State  of  New  Jersey,  as  a  rule, 
the  owner  of  land  adjoining  a  highway  is  not  bound  to  erect  a 
fence  along  sucli  highway.  The  statute  appnes  only  to  owners 
of  adjoining  closes  {Chambers  v.  Matthews,  3  Harrison'' s  JR.,  368). 

In  an  action  under  the  New  Jersey  statute  regulating  fences,  in 
order  to  give  the  appraisement  in  evidence,  the  Supreme  Court  of 
the  State  has  held  that  the  state  of  demand  must  show  that  the 
plaintifi's  fence  was  lawful:  that  the  horses  or  other  beasts  broke 
through,  etc.,  and  did  damage ;  and  that  the  appraisers  were 
chosen  as  the  law  directs  {Brittin  v.  Van  Camp,  2  Pennington' s 
R.,  662). 

In  the  State  of  Pennsylvania,  all  cornfields  and  grounds  kept 
for  inclosures,  are  required  by  statute  to  be  well  fenced,  with  fence 
at  least  five  feet  high,  of  sufticient  rails  or  logs,  and  close  at  the 
bottom.  And  whosoever,  not  having  his  ground  so  inclosed,  shall 
hurt,  kill  or  do  damage  to  any  horse,  kine,  sheep,  hogs  or  goats  of 
any  other  person,  by  hurting  or  driving  them  out  of  or  from  said 
grounds,  is  made  liable  to  make  good  the  damage.  Any  person 
who  shall  maliciously  break  or  thrown  down  any  fence  erected  for 
the  inclosure  of  land,  or  shall  carry  away  any  of  the  material  of 
such  fence,  is  liable  to  be  punished  for  a  misdemeanor. 

Wliere  any  two  persons  shall  improve  lands  adjacent  to  each 
other,  or  where  any  person  shall  inclose  any  land  adjoining  to 
another's  land  already  fenced  in,  so  that  an}'  part  of  the  first  per 


STATUTES   OF  PA.    RESPECTING   FENCES.  441 

son's  fence  becomes  the  partition  fence  between  tlieni,  \a  both 
cases,  the  charge  of  such  division,  so  far  as  is  inclosed  on  both 
sides,  must  be  equally  borne  and  maintained  by  both  parties.  In 
cases'  of  dispute  in  respect  to  partition  fences,  the  fence-viewers 
or  auditors  of  the  town,  are  to  settle  the  same  in  the  manner 
pointed  out  by  the  statute,  except  that  in  the  city  of  Philadelphia, 
the  surveyors  and  regulators  of  the  cit}',  are  to  discharge  this  duty. 
And  all  partition  fences  d  viding  inclosed  lands  within  the  rural 
districts  of  the  city  of  Phl.'.delphia,  are  required  to  be  substanti- 
ally made,  at  least  four  feet  and  a  half  high,  and  of  sufficient  rails 
or  logs,  the  bottom  rail  or  log  to  be  not  more  than  eight  inches 
above  the  ground;  and  in  the  built-np  portions  of  said  city,  a 
light  board  or  palisade  fence,  substantially  built,  at  least  six  feet 
high,  is  required,  and  in  eitlier  case,  the  fence-viewers  and  board 
of  managers  and  regulators  may  designate  the  kind  of  fence  to 
be  built ;  provided  that  the  cost  of  the  fence  in  the  rui-al  districts 
shall  not  exceed  twelve  cents  per  lineal  foot,  and  in  the  built-up 
portions  of  the  city,  not  exceeding  twenty-five  cents  per  lineal 
foot.  In  cases  where  a  building  shall  be  a  part  of  such  party 
fence,  the  owmer  of  the  ground  on  which  the  building  is  erected, 
will  be  allowed  for  so  much  of  said  building  as  forms  part  of  the 
partition,  as  part  of  his  share  of  the  whole  fence,  in  proportion  to 
the  cost  of  the  whole.  Parties  may  agree  to  divide  any  partition 
fence  between  them,  but  the  agreement  must  be  filed  in  the  office 
of  the  board  of  surveyors  and  regulators,  to  be  there  kept  as  a 
public  record.  If  a  party  shall  be  delinquent  in  making  or  repair- 
ing any  fence,  the  statute  prescribes  a  remedy  to  the  party 
aggrieved,  by  permitting  him  to  pi'oceed  and  do  the  work  himself, 
and  recover  the  expense  thereof  of  the  delinquent  {Brlghtleifs 
Purdoii's  Digest^  693-695).  Incorporated  boroughs  in  the  com- 
monwealth of  Pennsylvania,  have  power,  among  other  things,  to 
make  all  needful  regulations  respecting  the  foundations  and  party 
■walls  of  buildings,  and  partition  fences  {Brightley^s  Purd.  Dig., 
168). 

It  has  been  held  by  the  Supreme  Court  of  the  State  that,  where 
there  is  only  a  line  between  lands  of  different  parties,  each  party 
has  a  right  to  insist  on  a  common  partition  fence.  Where  one 
party  erected  his  half,  it  was  held,  that  the  other  who  refused  to 
finish  it,  had  no  ground  of  action  for  damage  done  by  the  former's 
cattle,  which  by  the  completion  of  the  fence  might  have  been  pre- 
56 


442  ii^TT  OF  FENCES. 

vented  {Bangler  v,  McCreight,  27  Penn.  E.,  95).  But  where  an 
owner  of  unimproved  land,  adjoining  unimproved  land  of  another 
person,  builds  a  fence  on  the  line,  he  cannot  call  on  the  other  for 
contribution.  It  was  held  in  the  same  case,  that,  if  a  man's  land 
is  inclosed  by  an  insuthcient  fence,  and  another's  cattle  enter  upon 
it,  he  may  drive  them  out,  but  must  answer  for  any  injury  done 
to  them  in  driving  them  out;  but  if  he  drives  them  into  the  high- 
way, and  they  afterward  suffer  injury  without  his  fault,  the  court 
held  he  would  not  be  responsible  {Palmer  v.  S'dverthorn^  32  Penn. 
R.,  65). 

Either  owner  of  adjoining  premises  may  erect  a  partition  fence 
at  his  pleasure,  and  his  occupation  of  such  land  of  his  neighbor 
as  is  requisite  for  such  purpose,  is  not  adverse,  but  by  permission. 
And  where  one  owner  clears  and  incloses  to  a  fence  already 
erected  on  the  boundary  line,  he  may  insert  the  rails  of  his  new 
fence  into  the  partition  fence,  and  if  they  project  a  short  distance, 
the  court  holds  that  it  falls  within  the  maxim'  de  minimis,  etc 
{Dysart  v.  Leeds,  2  Barr''s  R.,  488).  And  where  a  partition 
fence  has  been  destroyed  by  a  flood,  either  party  may  recede  from 
the  former  line,  and  erect  the  fence  on  his  own  land,  leaving  the 
intervening  space  open  to  the  public  ;  in  which  case,  he  is  not 
bound  to  maintain  the  former  fence.  It  seems,  however,  that  he 
is  only  entitled  to  do  so  in  the  event  of  a  destruction  of  the  former 
fence  by  an  accident  {Painter  v.  Reece,  2  Barr''s  R.,  126). 

If  there  is  in  fact  a  partition  fence,  by  the  laws  of  Pennsylvania, 
the  duty  of  contribution  to  maintain  it  exists,  although  the  line 
may  be  in  dispute.  The  jurisdiction  of  a  justice  of  the  peace, 
under  the  fence  law,  to  enforce  contributions,  is  not  ousted  by  rais- 
ing a  question  of  title  to  land  {Stephens  v.  Shriver,  25  Penn.  R., 
78).  By  law,  the  expense  of  a  partition  fence  between  adjoining 
improved  lands  must  be  borne  equally  by  the  owners.  A  lane 
existed  between  the  lands  of  A,  and  B. ;  but  A.  claiming  the  land 
in  the  lane,  B.  removed  his  fence,  leaving  a  space  on  his  own  land 
for  a  lane.  It  was  left  open  at  both  ends,  and  was  used  by  all 
who  chose  to  do  so.  B.  removed  his  fence  to  where  A.'s  fence 
formerly  stood,  including  the  old  lane.  The  Superior  Court  of 
the  State  held  that  the  new  lane  was  not  improved  land,  and  A. 
was  not  bound  to  bear  the  expense  of  half  the  fence  built  by  B. 
{Rohrer  v.  Rohrer,  18  Penn.  R.,  367). 

Under  the  act  of  Pennsylvania  relative  to  partition  fences  a 


STATUTES   OF  PA.   RESPECTING   FENCES.  443 

landowner  is  not  entitled  to  five  day's  notice  before  the  meeting 
of  the  fence-viewers;  he  is  entitled,  however,  to  a  notice;  of  the 
view ;  but  if  he  attends  the  view  without  it,  and  does  not  object 
to  the  want  of  notice,  he  cannot  afterward  raise  the  objection.  It 
is  also  held  that  the  certificate  of  fence-viewers  should  not  be  dis- 
regarded as  not  sustaining  itself,  if  the  facts  in  the  case  sustain  it. 
Any  material  omission  in  the  certificate  may  be  supplied  by  oral 
testimony.  But  if  the  certificate  be  void  for  uncertainty,  the 
remedy  of  the  complaining  party  is  not  gone,  as  he  can  still  recover 
for  his  work  and  labor  on  proving  otherwise  its  necessity  and  value. 
And  it  is  not  essential  to  the  right  of  action  that  the  auditors 
should  have  taken  an  official  oath  as  fence-viewers.  Kor  is  such 
oath,  it  seems,  essential  to  the  validity  of  the  certificate  {Shrlver 
V.  Stephens,  20  Penn.  H.,  138). 

It  has  been  held  by  the  courts  of  Pennsylvania  that,  where  the 
owner  of  land  erects  a  party  wall,  half  on  one  lot  and  half  on  the 
other,  the  purchaser  of  one  of  the  lots  at  a  sherifi:*'6  sale  cannot 
recover  of  the  purchaser  of  the  other  lot,  who  afterward  uses  the 
wall  as  a  party  wall,  for  such  use,  neither  under  the  Pennsylvania 
act  of  February  21,  1724,  nor  hy  common  law  {Oat  v.  Middletun, 
2  Miles'  i?.,  247). 

And  in  a  much  later  case  the  Supreme  Court  of  the  State  held 
that  the  decisions  of  the  surveyor  of  the  city  of  Philadelphia 
directing  the  removal  of  a  party  wall  is  conclusive,  no  appeal 
therefrom  lying  to  the  Common  Pleas  ;  and  under  the  act  of  April 
5th,  1849,  the  Common  Pleas  may  cause  the  wall  to  be  forthwith 
removed.  In  the  course  of  his  opinion,  Lowrie,  J.,  examined  the 
law  in  respect  to  party  walls  in  the  city  of  Philadelphia,  and  con- 
cluded that  there  could  be  no  available  objection  to  it,  or  the 
principle  on  which  it  is  based,  and  said  that  the  law  as  to  parti- 
tion fences  involved  the  same  principle  {Evans  v.  Jayne,  23  Pen)i. 
R.,  34). 

Under  the  laws  of  Pennsylvania  one  of  the  owners  of  adjacent 
lands  cannot  call  upon  the  other  to  contribute  to  the  change  of  a 
division  fence.  It  was  held  that  the  act  of  11th  March,  1842,  has 
no  application  to  such  a  case,  and  the  act  of  1700  does  not  require 
the  owner  of  land,  inclosed  by  an  insufficient  fence,  to  permit 
trespassing  cattle  to  remain  in  his  fields;  it  only  gives  damages  to 
the  owner  of  the  cattle  for  any  injury  done  to  them  in  driving  them 
out  of  the  other  party's  grounds  {Palmer  \.  Silvcr/iorn,  32  Penn 


444  £.411"   OF  FENCES. 

R..  65).  And  the  Supreme  Court  lias  recently  held  that  the 
20iniuon  law  required  the  owner  to  keep  his  cattle  within  his  close, 
and  their  intrusion  on  another's  possession  was  a  trespass;  and  it 
was  declared  that  this  would  be  the  rule  in  Pennsylvania,  except 
fur  the  acts  of  assembly  imposing  duties  upon  landowners,  other 
than  those  of  the  English  common  law.  Under  the  Pennsylvania 
law  the  owner  of  improved  lands  must  fence  them,  both  to  restrain 
his  cattle  and  to  shut  out  the  roving  cattle  of  his  neiglibors. 
Unless  improved  lands  are  inclosed  by  a  fence  the  owner  is  in 
default,  and  cannot  maintain  trespass  for  damages  by  roving  cattle. 
The  law  requires  improved  lands  to  be  fenced  ;  and  where  it  is  the 
duty  of  the  landowner  to  fence  his  land,  he  cannot  recover  for 
damages  by  stray  cattle  while  he  neglects  his  duty  {Gregg  v  Gregg, 
55  Penn.  li.,  227 ;  vide  Adams  v.  McKinnexj,  Addison^ s  R.,  258.) 
In  a  very  late  case  before  the  Superior  Court  it  appeared  that 
adjoining  landowners  had  agreed  not  to  make  any  common  divi- 
sion fence,  and  it  was  held  that  each  was  liable  to  the  other  for 
trespass  from  his  cattle.  And  it  was  declared  that  keeping  up  the 
partition  fence  being  a  common  duty,  the  parties  might  waive  it. 
The  case  of  Gregg  v.  Gregg  {supra),  was  declared  not  to  be  a  case 
between  the  owners  of  adjoining  improved  land,  and  was,  there- 
fore, no  authority  for  the  case  at  bar  {MilUgan  x.  Wekinger,  68 
Penn.  P.,  235). 

There  is  a  statute  of  Pennsylvania  authorizing  the  impounding 
of  cattle  trespassing  upon  inclosures  by  a  substantial  fence ;  and 
it  has  been  decided  that  a  party  impounding  cattle  must  proceed 
according  to  the  statute  or  he  will  be  deemed  a  trespasser  ab  initio, 
and  responsible  in  damages  to  the  owner  of  the  cattle  {Fitzioater 
y.  Stout,  16  Penji.  P.,  22). 

In  the  little  State  of  Delaware,  the  statute  provides  that  a  good 
fence  of  wood,  stone,  or  well-set  thorn,  four  and  a  half  feet  high, 
or  four  feet  high,  and  having  a  ditch  within  two  feet  of  it,  shall 
be  deemed  a  lawful  fence  in  New  Castle  and  Kent  connties ;  and 
in  Sussex  county  four  feet  is  made  the  height  of  lawful  fences. 
And  if  any  horse,  cattle,  goat,  sheep  or  hog  shall  trespass  on 
grounds  inclosed  w^ith  lawful  fences,  the  owner  of  such  trespassing 
animal  is  required  to  pay  the  damages  awarded  by  the  fence-view- 
ers. If  such  animals  are  unruly,  and  break  through  lawful  fences 
to  commit  such  trespass,  the  owner  is  made  liable  to  pay  double 


STATUTES   OF  MD.   RESPECTING  FENCES.  445 

damages  for  any  such  trespass  committed  by  said  animals  after 
notice  that  they  are  so  nnruly. 

The  respective  occnpants  of  hinds  inclosed  by  fences  are  required 
to  maintain  partition  fences  between  them  in  equal  shares,  so  long 
as  both  parties  continue  to  improve  the  same.  And  when  any 
person  shall  inclose  land  adjoining  another's  inclosed  land,  so  that 
any  part  of  the  fence,  or  fence  and  ditch,  or  hedge  and  ditch,  or 
wall,  already  made,  becomes  a  partition  fence,  the  fence-viewers 
must  determine  what  sum  shall  be  paid  by  the  one  to  the  other ; 
and  the  fence  must  then  be  maintained  by  the  parties  equally. 
The  adjoining  owners  or  occupants  of  embanked  marshes  or 
meadows  are  obliged  to  join  in  cutting  division  ditches,  at  least 
eight  feet  wide  and  two  and  a  half  feet  deep,  and  in  making  fences 
at  least  two  feet  high,  within  one  foot  of  the  edge  of  said  ditches, 
at  their  common  cost,  and  such  ditches  are  required  to  be  well 
cleaned  once  in  each  year,  and  the  fences  kept  in  good  repair,  and 
then  they  are  deemed  lawful  fences.  Any  person  refusing  or 
neglecting  to  join  in  making  such  ditch  and  fence,  or  in  keeping  the 
same  in  good  order  and  repair,  is  made  liable  to  the  adjoining 
owner  who  does  the  work  for  his  proportion  of  the  cost  thereof,  to 
be  determined  by  the  fence-viewers.  The  fence-viewers  are  also 
made  sole  judges  of  the  sufficiency  of  fences,  and  of  the  charges 
of  making  and  repairing  the  same  {Revised  Code,  ch.  57). 

In  the  State  of  Maryland  they  have  no  general  laws  on  the  sub- 
ject of  fences.  The  matter  is  regulated  by  local  laws  for  the  several 
counties.  For  example,  by  the  statute  now  in  force  relating  to 
the  county  of  Baltimore,  when  tlie  lands  of  any  two  persons  adjoin, 
each  of  them  must  make  and  maintain  one-half  of  the  Avliole  length 
of  the  line  of  fence  between  them,  and  if  either  party  shall  fail  to 
do  so,  after  the  expiration  of  sixty  days'  notice  or  request  in  writ- 
ing for  that  purpose,  the  other  party  may  make  or  repair  the  same, 
as  the  case  may  be,  and  recover  the  expense  thereof  from  the  party 
in  default.  The  statute  prescribes  the  course  of  procedure  in  cases 
where  a  party  neglects  to  build  or  repair  his  portion  of  a  line 
fence.  Fences  are  to  be  at  least  four  feet  high,  and  sufficiently 
close  to  prevent  hogs  from  passing  through  the  same,  provided 
such  fence  be  not  within  five  miles  of  the  city  of  Baltimore 
{Laws  of  1870,  ch.  437). 

In  the  county  of  Allegany,  lands  must  be  inclosed  by  a  good 
and  substantial  fence,  at  least  four  and  a  half  feet  high,  and  it  is 


446  -^^^'   0^  FENCES. 

made  unlawful  to  impound  any  horned  or  black-cattle,  horses, 
mules,  sheep  or  hogs,  unless  they  are  found  trespassing  within  an 
inclosure  inclosed  by  such  fence  {Laws  of  1870,  ch.  137).  And 
in  Carroll  county,  all  post  and  rail  or  plank  fences  are  required  to 
be  at  least  four  feet  and  a  half  high,  stone  fences  four  feet  high, 
and  all  worm  or  other  fences  must  be  at  least  five  feet  high,  and 
the  distance  in  any  case  is  to  be  computed  from  the  ground,  or 
base  of  any  embankment  on  which  the  same  may  be  placed  {Zcnvs 
of  1870,  ch.  432). 

The  foregoing  may  be  regarded  as  fair  specimens  of  the  local 
laws  upon  the  subject  of  fences,  and  it  can  hardly  be  worth  the 
space  required  to  refer  to  all  the  local  regulations  for  the  twenty- 
one  counties  of  tlie  State.  It  has  been  held  by  the  courts  that  in 
a  county  where  there  is  no  act  of  the  legislature  regulating  par- 
tition fences,  the  principles  of  tlie  common  law  will  prevail ;  that 
the  tenant  of  a  close  is  not  bound  or  obliged  to  fence  against  an 
adjoining  close,  unless  by  force  of  prescription,  but  that  he  is 
bound  at  his  peril  to  keep  his  cattle  on  his  own  close  {Richardson 
V.  Milhurn,  11  Md.  B.,  340). 

By  the  statutes  of  Virginia,  every  fence  five  feet  high  which,  if 
the  fence  be  on  a  mound,  shall  include  the  mound  to  the  bottom 
of  the  ditch,  is  deemed  a  lawful  fence  as  to  horses,  cattle,  hogs, 
sheep  and  goats,  which  cannot  creep  through  the  same  {Code  of 
1860,  ch.  99,  §  1,  as  amended  hy  Laws  of  1872,  ch.  239).  Special 
provisions  are  made  respecting  the  maintaining  of  fences  upon  the 
low  grounds  on  either  side  of  the  James  river  in  certain  specified 
counties,  which  it  would  take  too  much  space  to  enumerate  here 
{Code,  ch.  99,  §§  3-5),  And  certain  rivers  and  streams  are  deemed 
lawful  fences,  between  certain  specified  points,  which  may  be 
seen  by  reference  to  the  second  section  of  the  chapter  referred  to. 

A  case  relating  to  the  law  respecting  fences  came  before  the 
courts  of  Virginia  several  years  ago,  wherein  it  appeared  that  a 
party  in  actual  and  peaceable  possession  of  land  which  he  claimed 
as  his  own,  inclosed  it  with  a  fence.  About  four  years  afterward, 
another  person,  who  claimed  the  same  land,  and  had  a  better  title 
to  it,  forcibly  pulled  down  and  removed  the  fence.  It  was  held, 
that  this  was  not  a  trespass  for  which  a  prosecution  could  be  sus- 
tained under  the  Virginia  statute  of  February  14th,  1823  {Camp- 
heWs  Case,  2  RobinsorCs  i?.,  791).  And  in  a  later  case  before  tho 
same  courts,  wherein  it  appeared  that  a  person  was  indicted  foi 


STATUTES    OF   W.    VA.    RESPECTING   FENCES.  447 

removing  a  fence  under  the  Supp.  Rev.  Code  of  Virginia  (chapter 
226,  section  one),  and  the  proof  showed  that  he  removed  the  fence 
under  a  claim  of  right,  believing  it  to  be  his  own,  and  that  he  had 
a  honajide  right  to  it.  The  courts  held  that  he  had  committed  no 
ofiense  against  the  statute.  And  it  was  held  in  the  same  case, 
that  an  ii'idictment  which  charges  that  the  defendant  knowingly 
and  willfully  removed  a  fence  from  the  lands  of  A.,  and  did 
injure  and  expose  the  growing  crop  of  A.  then  on  said  land, 
charges  but  one  offense  and  is  valid  {Ratdiffe  v.  The  Common- 
xoealtk,  5  Gratton's  B.,  657). 

In  West  Virginia  the  statute  provides  that  the  following  fences 
shall  be  deemed  legal,  viz :  If  built  of  common  rails,  and  known 
as  the  worm  fence,  four  and  a  half  feet  high  ;  if  built  with  posts 
and  rails,  or  posts  and  plank  or  pickets,  four  feet  high ;  if  built 
with  stone,  two  feet  wide  at  the  base,  three  and  a  half  feet  liigh  ; 
if  a  hedge  fence,  four  feet  high.  And  if  any  such  fence  be  built 
upon  a  mound,  the  same  from  the  bottom  of  the  ditch  is  to  be 
included  in  estimating  the  height  of  the  fence.  All  streams  and 
rivers  in  the  State  which  were  lawful  fences  at  the  time  the  act 
in  respect  to  fences  became  a  law,  continue  to  be  lawful  fences. 
And  the  board  of  supervisors  of  any  county  may  declare,  by 
ordinance,  any  river  or  stream  in  their  county,  or  which  consti- 
tutes a  boundary  line  thereof,  a  lawful  fence,  and  may  discontinue 
any  such  river  or  stream,  or  any  part  thereof,  as  a  lawful  fence, 
which  has  already  been  declared  to  be  such. 

Where  two  or  more  persons  shall  have  lands  adjoining,  each 
of  them  is  required  to  make  and  maintain  a  just  proportion  of  the 
division  fence  between  them,  except  one  of  them  shall  choose  to 
let  his  land  lie  open,  and  then  if  he  afterward  inclose  his  land,  he 
is  required  to  refund  to  the  owner  of  the  adjoining  land  a  just 
proportion  of  the  value  at  that  time,  of  any  division  fence  that 
shall  have  been  made  by  him,  the  value  of  which,  and  the  propor- 
tion to  be  paid,  and  all  other  disputes  respecting  such  fences,  are 
to  be  settled,  in  case  of  disagreement  between  the  parties,  by 
three  persons  to  be  agreed  upon  by  them,  or  in  case,  they  fail  to 
agree  on  them,  to  be  appointed  by  the  board  of  supervisors  of  the 
county.  In  case  of  dispute  in  which  the  sufficiency  of  a  fence 
comes  in  question,  the  statute  presumes  that  the  same  was,  at  the 
time  the  controversy  arose,  a  lawful  fence  and  in  good  repair, 
unless  the  contrary  be  proven  (Code  of  186S,  ch.  60).     And  it  is 


448  LA  W  OF  FENCES. 

provided  by  the  second  section  of  the  same  chapter  that  if  any 
horses,  mnles,  cattle,  sheep,  hogs  or  goats,  shall  enter  grounds 
inclosed  with  a  lawful  fence,  the  owner  or  manager  of  any  sucli 
animal  shall  be  liable  to  the  owner  of  the  grounds  for  any  damages 
he  may  sustain  thereby  ;  and  for  every  succeeding  trespass  by  such 
animal,  tlie  owner  thereof  is  made  liable  for  double  damages. 
And  after  having  given  at  least  five  days'  notice  to  the  owner  or 
manager  of  such  animal  of  the  fact  of  two  previous  trespasses, 
the  owner  or  occupier  of  such  grounds  will  be  entitled  to  such 
animal,  if  it  be  found  again  trespassing  on  said  grounds. 


CHAPTER  XXXYIII. 

STATUTES  OF  THE  SEVERAL  STATES  KESPECTING  FENCES  —  LAWS  OF 
OHIO LAWS  OF  MICHIGAN LAWS  OF  INDIANA LAWS  OF  ILLI- 
NOIS   STATUTES      AND     DECISIONS      OF      THE      COUKTS     UPON      THE 

SUBJECT    OF   FENCES. 

By  the  statutes  of  Ohio  the  respective  owners  or  lessees  of  one 
or  more  years  of  lands,  are  required  to  keep  up  and  maintain  in 
good  repair  all  partition  fences  between  their  own  and  the  next 
adjoining  inclosures  in  equal  shares,  so  long  as  both  parties  con- 
tinue to  occupy  or  improve  the  same.  And  when  one  owner 
incloses  his  land  with  a  proper  fence,  and  subsequently  the  adjoin- 
ing owner  incloses  his  land  on  the  opposite  side,  provision  is  made 
requiring  him  to  contribute  to  the  cost  and  expense  of  the  line 
fence  already  built  (1  E.  S.,  ch.  45,  §  1).  And  when  any  contro- 
versy shall  arise  about  the  rights  of  the  respective  owners  of  par- 
tition fences,  and  their  obligation  to  keep  up  and  maintain  the 
same  in  good  repair,  and  they  cannot  agree  among  themselves,  the 
statute  provides  for  submitting  the  same  to  the  trustees  of  the 
township  in  which  the  fence  is  situate,  who  may  adjust  the  diffi- 
culty, and  the  parties  are  bound  to  comply  with  their  order  in  the 
premises.  And  remedies  are  provided  in  case  either  party  fails  to 
comply  with  the  order  of  the  trustees  in  the  matter  of  the  line 
fence  submitted  to  them  (1  R.  S.,  ch.  45,  §  3,  as  ameiided  hy  Laws 
of  1S7S,  2)ages  246,  247).  Provision  is  also  made  by  the  statute 
for  a  i-eadjustment  of  controversies  in  respect  to  partition  fences, 


STATUTES   OF  MICH.    TiESPECTIiXG   TEyCES.  449 

after  the  expiration  of  one  year  from  the  date  of  the  first  adjust- 
ment. Provision  is  also  made  for  ascertaining  and  recovering 
damages  sustained  by  trespassing  animals  on  account  of  partition 
fences  being  out  of  repair;  and  penalties  are  prescribed  for  allow- 
ing breachy  animals  to  run  at  large.  The  statute  also  provides 
that  in  all  cases  where  the  inclosures  of  two  or  more  persons  shall 
be  divided  by  a  partition  fence  of  any  kind,  and  either  of  the  par- 
ties shall  think  proper  to  vacate  liis  part  of  such  enclosure,  or  to 
make  a  lane  or  passage  between  such  adjoining  inclosures,  such 
person  shall  be  at  liberty  to  remove  his  share  or  part  of  such  par- 
tition fence,  on  giving  six  months'  notice,  in  writing,  of  such  inten- 
tion, to  the  party  owning  or  occupying  the  adjoining  inclosure,  or 
to  his  agent,  if  such  party  is  not  a  resident  of  the  county  (1  i?. 
>S^.,  ch.  45,  §§  4-17).  Railroad  companies  are  required  to  fence 
their  roads  with  good  substantial  wooden  fences,  nnder  certain 
specified  regulations  prescribed  by  the  statute  (1  J2..S..,ck.2d,. 
§§35,  180,  181,  184). 

The  Supreme  Court  of  the  State  has  held,  that,  though  there  is. 
no  law  in  Ohio,  requiring  any  person  to  fence  or  inclose  his 
grounds,  yet  the  owner  who  leaves  his  lands  uninclosed,  takes 
the  risk  of  intrusion  upon  his  grounds,  from  the  animals  of  other 
persons,  running  at  large  {KerwhciGker  v.  The  Cleveland,  Coluni- 
hus  and  Cincinnati  Railroad  Company,  3  Ohio,  iV.  S.  i?.,  172). 
It  appears,  therefore,  that  the  common  law,  which  requires  the 
owners  of  cattle  and  other  animals,  to  keep  them  upon  their  own 
premises,  at  their  peril,  is  not  in  force  in  the  State  of  Ohio,  even 
though  they  have  no  statute  in  the  State  abrogating  the  rule.  The 
Supreme  Court  of  the  State  has  expressly  held,  that  the  common- 
law  doctrine  making  the  owner  of  domestic  animals  a  trespasser,. if 
he  permits  them  to  stray  npon  the  nninclosed  lands  of  another,,  is- 
not  the  law  of  Ohio  {The  Cleveland,  Columhus  and  Cincinnati- 
Railroad  Company  v.  Elliot,  4  Ohio,  N.  S.  R.,  474). 

In  the  State  of  Michigan,  all  fences  four  and  a  half  feet  high,, 
and  in  good  repair,  consisting  of  rails,  tind)er,  boards  or  stone- 
walls, or  any  combination  thereof,  and  all  brooks,  rivers,  ponds,, 
creeks,  ditches  and  hedges,  or  other  things  which  may  be  con- 
sidered equivalent  tliereto  in  the  judgment  of  the  fence-viewers 
within  whose  jurisdiction  the  same  may  be,,  are  deemed  legal  and 
sufiicient  fences  by  statute.  And  the  respective  occupants  of 
lands  inclosed  with  fences  are  required  to  keep  up  and  nuvintain 
57 


450  -^-^^'   ^^  FENCES. 

partition  fences  between  their  own  and  the  next  adjoining 
inclosures,  in  equal  shares,  so  long  as  both  parties  continue  to 
improve  the  same.  Provision  is  also  made  for  settling  controver- 
sies in  respect  to  division  fences,  and  prescribing  remedies  where 
parties  fail  to  perform  their  obligations  in  respect  to  the  same. 
All  partition  fences  are  required  to  be  kept  in  good  repair  through- 
out the  year,  unless  the  occupants  on  both  sides  shall  otherwise 
mutually  agree.  Where  lands  of  different  persons,  which  are 
required  to  be  fenced,  are  bounded  upon,  or  divided  by  any  river, 
brook,  pond  or  creek,  which  of  itself,  in  the  judgment  of  the 
fence-viewers  is  not  a  sufficient  fence,  provision  is  made  for  adjust- 
ang  the  matter  of  making  a  partition  fence  between  the  respective 
parties,  and  for  the  enforcement  of  tlie  order  of  the  fence-viewers 
in  the  premises.  And  where  a  partition  fence  running  into  the 
■water  is  necessary  to  be  made,  the  same  is  required  to  be  done  in 
equal  shares  unless  otherwise  agreed  by  the  parties,  and  in  case  of 
delinquency  in  such  case,  similar  proceedings  are  to  be  had  as  in 
case  of  otlier  fences,  and  with  the  like  effect  (1  Comp.  Laws  of 
1871,  ch.  14). 

The  Supreme  Court  of  the  State  has  recently  decided,  that  the 
purpose  of  the  act  regulating  partition  fences  was,  to  compel 
every  person  to  discharge  his  duty  in  regard  to  the  same,  at  the 
peril  of  such  losses  as  he  might  suffer  from  his  neglect,  by  the 
beasts  of  those  persons  to  whom  the  duty  was  owing.  That  this 
duty  was  created  only  for  the  protection  of  adjoining  proprietors, 
and  that  before  the  duty  can  become  fixed,  so  as  to  require  him 
to  keep  in  repair  any  particular  portion  of  such  partition  fence,  it 
must  appear;  first,  that  the  adjoining  proprietor  improves  his 
land ;  and  second,  that  either  by  consent  or  by  the  action  of  the 
fence-viewers,  a  portion  of  the  partition  fence  between  them  has 
been  assigned  to  him  to  keep  in  repair.  And  it  was  declared  that 
adjoining  proprietors  may  dispense,  if  they  see  fit,  with  partition 
fences  altogether,  and  if  such  fences  are  erected,  that  no  particular 
iportion  thereof  belongs  to  either  party  to  be  kept  in  repair  by 
iim,  until  in  some  legal  mode  the  partition  is  made.  Until  this 
is  done,  it  was  said  that  it  would  be  presumed  that  the  parties 
choose  to  rely  upon  their  common-law  liability  for  damages  by  their 
-beasts  {Aylesioorth  v.  Harrington,  17  Mich.  R.,  417). 

The  statutes  of  Michigan  also  contain  the  usual  provisions 
requiring  railway  companies  within  the  State  to  erect  and  main 


STATUTES   OF  IXD.    RESPECTING    FEXCES.  451 

tain  fences  on  the  sides  of  their  respective  roads,  and  prescribing 
liabilities  in  case  of  default  (1  Comp.  Laws,  eh.  75,  §  43). 

It  was  formerly  held,  in  Michigan,  that  adjacent  landowners  in 
the  Sate  were  not  obliged  to  maintain  a  division  fence,  but  that 
each  was  responsible  for  his  own  cattle,  in  conformity  with  the 
i-equirements  of  the  common  law  upon  the  subject  {Johnson  v. 
Wing,  3  Mich.  B.,  163).  But  the  rule  has  been  changed  by 
express  provision  of  statute.  In  1847  an  act  was  passed,  pro 
Tviding  that  "  no  person  shall  recover  for  damages  done  upon  lands 
by  beasts,  unless  in  cases  where,  by  the  by-laws  of  the  township, 
such  beasts  are  prohibited  from  running  at  large,  except  when 
such  lands  are  inclosed  by  a  fence,"  etc.  The  court  held  that  this 
statute  did  not  change  the  common  law,  nor  require  individuals  to 
fence  their  lands,  but  only  precluded  the  recovery  of  damages  in 
case  they  were  not  fenced.  And  it  was  also  held  that  the  statute 
did  not  apply  to  such  lands  as  are  not  usually  fenced,  such  as 
railroad  tracks,  which  cannot  be  entirely  fenced  (  Williams  v.  TJve 
Michigan  Central  Railroad  Cornjpany,  2  Mich.  R.,  259).  But 
railwa}"  companies  are  now  required  by  the  statute  of  the  State  to 
maintain  fences  along  the  sides  of  their  roads.  It  seems  that  a 
person  in  Michigan  is  not  bound  to  maintain  a  partition  fence 
against  the  cattle  of  another  who  is  not  an  adjoining  owner  or 
occupant  {Aylesioorth  v.  Ilerrington,  17  Mich.  R.,  417). 

In  the  State  of  Indiana  the  statute  declares  that  any  structure 
or  hedge,  or  ditch,  in  the  nature  of  a  fence,  used  for  the  purposes 
of  inclosure,  which  is  such  as  good  husbandmen  generally  keep, 
and  shall  on  the  testimony  of  skillful  men,  appear  to  be  sufficient, 
shall  be  deemed  a  lawful  fence.  And  if  any  domestic  animal 
breaks  into  an  inclosure,  the  person  injured  thereby  shall  recover 
;the  amount  of  damage  done,  if  it  shall  appear  that  the  fence 
through  which  the  animal  broke  was  lawful;  but  otherwise  not. 

Except  where  otherwise  specially  agreed,  partition  fences, 
dividing  lands  occupied  on  both  sides,  must  be  maintained  through- 
out the  year,  equally  by  both  parties.  And  if  either  party  fail  to 
do  so,  the  other  may  give  him  notice  of  three  days,  that  he  will 
call  upon  two  disinterested  freeholders,  at  a  specified  place,  on  a 
day  fixed,  to  examine  said  fence,  and  if  they  deem  it  insufficient 
to  assess  the  amount  required  to  make  it  sufficient. 

Where  any  party  shall  cease  to  use  his  lands,  or  shall  lay  open 
his  inclosures,  he  is  prohibited  from  taking  away  any  part  of  his 


452  LAW   OF  FEXCES. 

fence  wliieli  forms  a  partition  fence  between  him  and  the  inclosure 
of  any  other  person,  nntil  he  shall  have  first  given  six  months' 
notice  to  such  person  or  persons  as  may  be  interested  in  the 
removing  of  said  fence,  of  his  intention  to  remove  the  same  (1  i?. 
S.  of  1862,  ch.  62). 

It  has  been  held  by  the  Supreme  Court  of  the  State,  that  both 
parties  to  a  partition  fence  in  Indiana  are  equally  bound  to  main- 
tain the  same.     Either  may  repair,  and  enforce  contribution  from 
the  other,  but  failure  to  do  so  leaves  them  upon  their  respective 
common-law  rights  and  obligations.     And  it  was  expressly  declared 
in  the  case,  that  the  provisions  of  the  statute  upon   the  subject 
applies  solely  to  outside  fences  {Myers  v.  Dodd,  9  Ind.  E.,  290). 
And  in  a  late  case  before  the  same  court,  it  was  held  that   the 
statute  defining  a  lawful  fence,  and   prohibiting  a  recovery  of 
damages  for  cattle  breaking  into  grounds  not  inclosed   by  such 
fence,  applies  only  to  outside  fences ;  and  that  as  to  inside  divi- 
sions, parties,  in  respect  to  trespassing  animals,  are  left  to  their 
common-law  rights  and  liabilities.     And  it  was  further  held  that 
a  person  who  chooses  not  to  inclose  his  land,  is  not  responsible 
for  cattle,  not  under  his  charge  or  control,  entering  his  land,  and 
passing  from  that  to  adjoining  land,  whether  there  be  a  partition 
fence  or  not  {Coot  v.  Morea,  33  Ind.  R.,  497).     And  in  another 
case  before  the  same  court,  it  was  declared  that  at  common  law 
the  owner  of  cattle  must  fence  them  in  ;  and  that  the  neighbor 
was  not  bound  to  fence  them  out.     It  was  further  held  that  the 
statute  of  the  State  only  applies  to  and  alters  the  rule  of  the  com- 
mon law  in  this  respect  as  to  "  outside"  fences,  and  not  as  to  par. 
tition  fences  {Brady  v.  Ball,  14  Ind.  B.,  317).     The  owner  of 
domestic  cattle  is  bound,  at  his  peril,  to  confine  them  on  his  own 
land,  and,  if  they  escape  and  commit  a  trespass  on  the  land  of 
another,  unless  through  the  defect  of  fences  which  the  latter  is 
bound  to  repair,  the  owner  will  be  h^ld  a  trespasser,  though  he 
had  in  fact  no  notice  of  this  propensity  {Page  v.  II oiling sworth^ 
7  Ind.  7?.,  317).     It  seems,  that  one  desiring  to  remove  a  parti- 
tion fence,  should,  under  the  Indiana  statute,  ascertain  its  value, 
and  how  much  he  may  remove,  by  means  similar  to  those  ordained 
for  assessing  the  expense  of  erection  {Haines  v.  I{e?it,  11  Ind.  B.^ 
126). 

Tiailway  corporations  in  Indiana  are  required  by  statute  to  main- 
tain fences  along  the  sides  of  their  roads  with  certain  exceptions. 


STATUTES   OF  IND.    RESPECTING   FENCES.  453 

and  the  Supreme  Court  of  the  State  has  held  in  several  cases,  that 
the  requiring  such  companies  to  fence  is  a  police  regulation,  mak- 
ing them  liable  without  regard  to  the  negligence  of  the  owner  ot 
cattle  killed,  or  his  being  or  not  a  proprietor  of  adjoining  land 
{Indianapolis,  etc.  Railroad  Company  v.   Townsend,  10  Ind.  B., 
38 ;  The  Same  v.  Meek,  Ih.,  502 ;  Jeffersonville  Railroad  Com- 
pany V.  Appleyate,  11.,  49 ;  Tlie  Same  v.  Dougherty,  Ik,  549). 
But  it  is  held  that  a  railroad  company  is  not  liable  for  cattle  killed 
on  the  public  highway,  where  sufficient  fences  and  cattle-guards 
are  maintained,  M'ithout  negligence  on  the  part  of  the  company  or 
its  agents  {Nort}i£rn  Indiana  Railroad  Company  v.  Martin,  10 
Ind.  R.,  4G0).     And  it  seems  that  a  railroad  company  is  not  bound 
by  the  act  of  March  1st,  1853,  to  pay  for  a  hog  killed  on  its  track 
at  a  place  where  a  fence  ought  not  to  be  erected  {Indianapolis,  etc. 
Railroad  Company  v.  Kinney,  8  Ind.  R.,  402).     It  was  held  in 
a  later  case,  that  it  would  seem  to  be  not  an  unreasonable  rule  to 
require  owners  of  land  to  fence  their  grounds,  as  a  condition  pre- 
cedent to  the  right  to  recover  damages  for  trespasses  upon  them. 
And  where  ciittle  running  at  large,  stray  upon  a   railroad   at   a 
point  not  fenced,  nor  required  by  law  to  be  fenced,  and  are  killed 
by  an  engine,  the  court  held  that  common-law  principles  must 
determine  the  rights  and  liabilities  of  the  parties  {Indianapolis, 
etc.  Railroad  Company  v.  Caldwell,  9  Ind.  R.,  397).     It  has  been 
recently  held  by  the  Supreme  Court  of  the  State,  that  under  the 
present  law  of  Indiana,  a  railroad  company  should  build  a  fence 
between  its  track  and  a  public  highway  {Jefferso7iville  Railroad 
Company  v.  Sweeney,  32  Ind.  R.,  430).    But  it  has  been  held  that 
the  statute  provisions  in  Indiana  imposing  a  liability  upon  railroad 
companies  for  injuries  to  animals  through  defect  of  fences,  only 
apply  when   the   casualty  occurs  at   a   spot  where   the   company 
ought  by  law  to  maintain  a  fence.     For  an  animal  killed  at  a  spot 
where  the  company'  is  not  bound  to  fence,  a  recovery  can  be  had 
only  upon  common-law  grounds,  that  is  to  say,  by  proof  of  negli- 
gence or  of  a  willful  killing  {Jeffersonville,  etc.  Railroad  Com- 
Ijaiiy  V.  Brevoorty  30  Ind.  R.,  324).     A  })ortion  of  a  railroad  is 
not  excepted  from  the  requirements  of  the  statute  as  to  fences 
merely   because   it   is   within   city  limits.     The   exception   only 
extends  to  places  where  it  is  unreasonable  or  improper  that  the 
road  should  be  fenced,  whether  within  or  without  the  limits  of 


454  -^^  ^  0^  FENCES. 

cities  or  towns  {Indianapolis,  etc.  Railroad  Company  v.  Par^ker, 
29  Ind.  R.,  471 ;  and  vide  Same  v.  Lowe,  Jh.,  545).* 

The  statutes  of  Illinois  provide  rules  and  regulations  for  pro- 
prietors or  owners  of  land  used  or  declared  to  be  "  a  common 
field,"  to  take  measures  in  respect  to  fencing  their  lands,  declaring 
that  they  may  meet  at  a  given  time  and  place  and  make  rules  in 
respect  to  the  same,  appoint  the  necessary  officers  and  committees, 
to  have  the  oversight  of  the  business,  and  the  proceedings  for 
locating  the  fences,  building  and  repairing  the  same,  and  the  like, 
are  specifically  and  plainly  prescribed  (1  Gross'  Stat.,  ch.  51,  §§ 
1-10). 

It  is  also  provided  by  statute  that,  where  two  or  moi-e  persons 
shall  have  lands  adjoining,  each  of  them  shall  make  and  maintain 
a  just  proportion  of  the  division  fence  between  them,  except  the 
owner  or  owners  of  either  of  the  adjoining  lands  shall  choose  to 
let  such  land  lie  open.  And  where  any  person  shall  have  chosen 
to  let  his  land  lie  open,  if  he  shall  afterward  inclose  the  same,  or 
if  any  owner  of  land  adjoining  upon  the  inclosure  of  another, 
shall  inclose  the  same  upon  the  inclosure  of  another,  he  is  required 
to  refund  to  the  owner  of  the  adjoining  lands  a  just  proportion  of 
the  value  at  that  time  of  any  division  fence  that  shall  have  been 
made  by  such  adjoining  owner,  or  he  must  immediately  build  his 
proportion  of  such  division  fence.  The  value  of  such  fence  and 
the  proportion  thereof  to  be  paid  by  such  person,  and  the  propor- 
tion of  the  division  fence  to  be  made  and  maintained 'by  him,  in 
case  of  his  inclosing  his  land,  must  be  determined  by  any  two 
fence-viewers  of  the  town,  in  counties  where  township  organiza- 
tion shall  have  been  adopted,  and  in  other  counties  by  any  two 
fence-viewers  of  the  county.  If  disputes  arise  between  the 
owners  of  adjoining  lands  relating  to  the  division  fences,  the  same 
must  be  settled  by  the  fence-viewers,  and  the  manner  of  proceed- 
ing is  pointed  out  by  the  statute. 

The  statute  also  provides  that,  if  any  person  liable  to  contribute 
to  the  erection  or  reparation  of  a  division  fence  shall  neglect  or 
refuse,  for  a  period  of  four  weeks  after  notice  in  writing  so  to  do, 

*  The  legislature  of  Indiana,  by  an  act  passed  December  19,  1865,  amended 
the  general  law  of  the  State  in  respect  to  fences,  by  enacting  that  a  lawful  fence 
shall  in  all  cases  be  such  as  to  inclose  and  restrain  sheep,  unless  by  mutual  con- 
sent of  the  parties  interested,  they  agree  to  build  a  fence  only  to  restrain  o. 
inclose  horses,  mules  or  cattle  (Laws  of  1865,  cli.  173) 


STATUTES   OF  ILL.    RESPECTING   FENCES.  455 

to  make  and  maintain  his  proportion  of  such  fence,  the  party 
injured  may  make  or  repair  the  same  at  the  expense  of  the  party 
so  neglecting  or  refusing,  and  the  party  in  default  may  also  bo 
made  to  pay  all  damages  resulting  from  his  neglect,  and  the 
method  of  proceeding  to  fix  the  same  is  pointed  out  in  the  statute. 

If  any  person  who  shall  have  made  his  proportion  of  a  division 
fence  shall  be  disposed  to  remove  his  fence,  and  suffer  his  lands  to 
lie  open,  after  having  iirst  given  the  adjoining  owner  at  least  sixty 
days'  previous  notice,  in  writing,  of  his  intention  so  to  do,  he 
may,  at  any  time  between  the  first  day  of  December  in  any  year, 
and  the  iirst  day  of  April  following,  but  at  no  other  time,  remove 
the  same.  And  if  any  such  fence  shall  be  removed  without  such 
notice,  the  party  removing  the  same  is  required  to  pay  to  the 
party  injured  all  such  damages  as  he  may  thereby  sustain,  to  be 
recovered  with  costs  of  suit. 

Whenever  a  division  fence  shall  be  injured  or  destroyed  by  fire, 
floods,  or  other  casualty,  the  person  bound  to  make  and  repair 
such  fence,  or  any  part  thereof,  is  bound  to  make  or  repair  the 
same,  or  his  just  proportion  thereof,  within  ten  days  after  he  shall 
be  thereto  required  by  any  person  interested  therein,  such  requisi- 
tion to  be  in  writing,  and  signed  by  the  party  making  the  same. 
And  if  such  person  shall  neglect  or  refuse  to  make  or  repair  his 
proportion  of  such  fence,  for  the  period  of  ten  days  after  such 
request,  the  party  injured  may  make  or  repair  the  same  at  the 
expense  of  the  party  so  refusing  or  neglecting,  to  be  recovered 
with  costs  of  suit.  The  practice  before  the  fence-viewers  is  pre- 
scribed by  the  statute,  and  the  manner  of  recovering  damages  is 
also  pointed  out  in  the  statute  (1  Gross'  Stat.,  ch.  51,  §§  20-35). 

The  statute  allows  parties  to  inclose  their  grounds  in  an}^  man- 
ner they  please,  with  sutticient  walls  or  fences  of  timber,  or  by 
dikes,  hedges  and  ditches,  but  such  walls  and  fences  must  be  in 
height  at  least  five  feet  from  the  ground,  and  all  dikes  must  be  at 
least  three  feet  in  height  from  the  bottom  of  the  ditch,  and 
planted  and  set  with  thorn  and  other  quickset,  so  that  such 
.  inclosures  shall  fully  answer  and  secure  the  several  purposes  meant 
to  be  answered  and  secured  by  law,  and  such  walls  or  fences  of 
timber,  dikes,  hedges  and  ditches,  are  made  subject  to  the  pro- 
visions of  the  statute  in  respect  to  fences  (1  Gross'  Stat.,  ch.  17, 
§§11-18). 

The  Supreme  Court  of  Illinois  has  decided  that  the  common 


456  LAW   OF  FENCES. 

law  requiring  the  owner  of  cattle,  hogs,  etc.,  to  keep  them  upon 
his  own  land,  has  never  been  in  force  in  that  State,  and,  accord- 
ingly, in  order  to  maintain  an  action  for  the  trespass  of  cattle  upon 
one's  close  there,  the  owner  of  the  close  must  have  it  surrounded 
by  a  good  and  sufficient  fence.  It  was  declared  that  there  was  no 
general  law  in  Illinois  prohibiting  cattle  from  running  at  large  in 
the  highway  {^eeley  v.  Peters,  5  Gilm.  B.,  130  ;  Misnery.  Light- 
hall,  13  III.  E.,  609).  The  court  seems  not  to  have  been  entirely 
unanimous  in  the  laying  down  of  this  doctrine  at  first,  but  the 
rule  is  recognized  there,  nevertheless,  and  the  same  doctrine  pre- 
vails in  a  few  of  the  other  States.  The  common-law  rule,  how- 
ever, requiring  the  owner  of  stock  to  keep  it  on  his  own  land,  has 
been  recognized  in  the  State  of  Illinois  in  some  cases  as  governing 
inside  or  division  fences  {Headam  v.  Rust,  39  III.  R.,  18G). 

It  has  been  held  by  the  Supreme  Court  of  Illinois,  that  a  parti- 
tion fence,  whether  existing  by  agreement,  by  acquiescence,  or 
under  the  statute,  cannot  be  removed  until  the  parties  interested 
in  its  remaining  are  properly  notified  of  the  intended  removal 
{McCormick  v.  Tate,  20  III.  R.,  334:;  and  vide  Gray  v.  Water- 
man, 40  ih.,  522).  And  it  has  been  further  held  that,  if  there  be 
an  outer  and  an  iimer  fence  to  a  field,  a  party  not  having  an 
exclusive  right  in  the  field  cannot  remove  the  inner  fence,  although 
he  is  the  owner  thereof,  without  subjecting  himself  to  the  conse- 
quences of  exposing  the  crops  to  danger.  And  it  was  declared  to 
be  no  defense  to  an  action  of  trespass,  growing  out  of  the  removal 
of  the  inner  fence,  to  show  that  the  complaining  party  was  bound 
to  keep  the  outer  fence  in  repair,  or  that  he  might  have  repaired 
the  same  at  small  expense  {Buchnaster  v.  Cool,  12  III.  R.,  74 ; 
McCormick  v.  Tate,  supra). 

To  maintain  trespass  for  damage  done  by  stock,  the  owner  of 
the  close  must  have  it  surrounded  by  a  good  and  sufiicient  fence, 
except,  that  such  railroads  within  the  State  as  are  not  bound  to 
fence,  do  not  come  within  the  rule  {Headam  v.  Rust,  snjpra). 
A  good  and  sufiicient  fence  must  be,  not  merely  one  which 
will  turn  ordinary  stock,  for  a  slight  barrier  might  do  that,  but 
one  that  will  turn  stock  even  though  to  some  extent  unruly  {^Chi- 
cago &  Alton  Railroad  Company  v.  Cauffman,  38  III.  R.,  410). 
Of  course,  under  the  rule  which  has  been  adopted,  stock  is  per 
mitted  to  run  at  large   in  the  State  {Chicago,  Burlington   and 


STATUTES   OF  ILL.    RESPECTING   FENCES.  457 

Quincy  Railroad  Company  v.  Cauffinan,  38  III.  li.,  429  ;  Illinois 
Central  Railroad  Company  v.  Arnold,  47  ih.,  173). 

Where  A.  and  B.  join  fences,  and  have  no  partition  ience 
between  the  fields,  the  courts  hold  that  A.  cannot  recover  fruni  C.  for 
injuries  occasioned  by  the  stock  of  C.  ^^etting  on  A.'s  field  through 
the  defective  fence  of  B.  {Stoner  v.  S/ntyart,  45  III.  R.,  7G ;  and 
vide  Illinois  Central  Railroad  Conqxiny  v.  Arnold,  47  ih.,  173). 

A  case  came  before  the  Supreme  Court  of  the  State  a  few  years 
ago,  in  wJiich  it  appeared  that  A.  having  neglected  to  build  his 
portion  of  a  division  fence  between  his  premises  and  those  of  B., 
upon  proceedings  before  two  justices  under  the  statute,  it  was 
ordered  that  B.  should  build  A.'s  portion,  and  that  A.  should  pay 
therefor.  The  order  did  not  fix  the  height  of  the  fence.  B.  built 
the  fence,  but  not  of  the  height  which  had  been  decided  upon  by 
the  legal  voters  of  the  town  for  all  fences.  The  court  held,  that 
if  the  fence  was  sufficient  to  answer  the  purpose  for  which  it  was 
designed,  B.  was  entitled  to  recover  for  building  it  {Ketcham  v. 
Stolp,  15  III.  R.,  341).  In  an  early  case,  it  was  held  by  the  same 
court,  that  in  proceedings  under  the  Illinois  "  act  regulating 
inclosui-es,"  it  was  necessary  that  the  justice  of  the  peace,  before 
whom  proceedings  were  had,  should  notify  the  defendant  of  the 
same  {Ilolliday  v.  Scoailes,  1  Scam.  R.,  515). 

It  has  been  more  recently  held  by  the  Supreme  Court  that, 
•where,  in  an  action  of  trespass  gua?'e  clausum  f regit,  the  defendant 
pleaded  that  the  damage  done  was  occasioned  by  the  removal  of  a 
partition  fence,  and  that  the  plaintifi"  had  been  notified  of  this 
removal,  the  plea  should  have  shown  that  notice  was  given  in  due 
time  and  to  a  proper  person  {^IcCorniick  v.  Tate,  20  III.  R.,  334). 
And  in  a  still  more  recent  case,  the  same  court  held  that,  in  order 
to  maintain  an  action  for  the  trespass  of  stock  upon  one's  inclosure 
whereby  damage  is  sustained,  the  owner  of  the  inclosure  must 
liave  maintained  a  good  and  sufficient  fence.  And  the  doctrine 
■was  repeated  that  there  was  no  general  law  in  the  State  prohibiting 
cattle  from  running  at  large  in  the  highway  {Ileadarn  v.  Rust,  3'J 
III.  R.,  ISG).  And  in  a  still  later  case,  the  same  court  has 
declared,  that  owners  of  cattle  are  permitted  to  let  their  cattk'  run 
at  large,  and  that  an  owner  of  land  is  required  to  fence  again.-t 
them,  and  if  they  break  through  a  defective  outside  fence  and 
enter  upon  the  land,  the  owner  cannot  confine  them  until  liia 
charges  are  paid  {Stoner  v.  S/iuyart,  45  III.  R.,  76). 
58 


458  L^W  OF  FENCES. 

The  Supreme  Court  of  the  State  has  recently  decided,  that, 
under  the  Illinois  statute  requiring  the  abutting  landowner  to 
fence  a  railroad  within  six  months  of  its  opening,  the  new  owner 
of  an  unfenced  lot,  purchased  after  the  expiration  of  that  term,  is 
not  entitled  to  a  period  of  six  months  after  the  change  of  owner- 
ship, within  which  to  comply  with  the  law.  And  it  was  declared 
that  such  new  owner  takes  possession  subject  to  all  consequences 
of  his  grantor's  non-compliance,  so  far  as  liability  for  injuries  to 
third  persons  is  concerned  {The  Toledo,  etc.  Railroad  Comj)any 
V.  Arnold,  51  III.  R.,  241).  The  statute  of  Illinois  requires  rail- 
road companies  to  fence  their  roads  against  "  cattle,  horses,  slieep 
and  hogs ; "  and  the  Supreme  Court  of  the  State  has  declared 
such  statute  to  be  a  remedial  statute,  and  that  the  same  must  be 
construed  liberally.  Applying  this  rule,  it  has  been  held  that 
"  cattle  "  specified  in  the  statute  includes  "  asses  "  {Ohio,  etc.  Rail- 
road Cojrupany  v.  Buribaker,  47  III.  R.,  468).  And  it  has  also 
been  held  that  the  statute  extends  to  mules  {Toledo,  etc.  Railroad 
Company  v.  Cole,  50  III.  R.,  184).  But  the  Supreme  Court  has 
held  that,  where  a  railroad  is  inclosed  by  a  sufficient  fence,  and  a 
casual  breach  occurs  therein,  without  the  knowledo-e  or  fault  of 
the  company,  and  through  such  breach,  stock  get  upon  the  track 
and  are  injured,  the  company  will  not  be  liable  unless  they  have 
had  a  reasonable  time  to  discover  such  breach,  or  have  been  noti- 
fied, and  failed  to  repaii',  before  the  injury  occurred  {Illinois  Cen- 
tral Railroad  Company  v.  Swearingen,  47  III.  R.,  206).  But  in 
one  case  where  it  appeared  that  an  animal  passed  on  to  the  rail- 
way track  through  a  space  made  for  bars,  and  was  killed,  and  the 
bars  had  been  left  down  for  a  period  of  three  months,  the  court 
held,  that  the  statute  required  the  railroad  company  to  "  erect  and 
maintain"  a  sufficient  fence,  of  which  the  bars  were  a  part,  and 
that  the  company,  having  allowed  them  to  remain  down  for  so 
long  a  time,  was  liable  for  the  loss  {Illinois  Central  Railroad 
Company  v.  Arnold,  47  III.  R.,  173).  The  obligation  of  a  rail- 
road company  to  fence  its  road  at  a  particular  point  is  a  question 
of  law,  not  of  fact  for  a  jury  {Illinois,  etc.  Railroad  Company  v. 
Whalen,  42  III.  R.,  396).  Under  the  Illinois  statute,  a  railroad 
company  is  liable  for  all  damages  resulting  from  its  neglect  to 
fence  or  maintain  a  sufficient  fence  without  regard  to  the  question 
whether  it  used  due  care  in  other  respects  or  not  {The  St.  louis 
etc.  Railroad  Company  v.  Linden,  39  III.  R.,  433). 


STATUTES   OF  WIS.   RESPECTING  FENCES.  459 


CHAPTER  XXXIX. 

STATUTES   OF  THE   SEVERAL    STATES    KEePECTINO   FENCES  —  LAWS    OB 

"WISCONSIN LAWS     OF     MINNESOTA LAWS    OF    IOWA STATUTES 

AND  DECISIONS  OF  THE  COURTS, 

In  the  State  of  Wisconsin,  the  statute  provides  that  all  fences 
four  and  a  half  feet  high,  and  in  good  repair,  consisting  of  rails, 
timber,  boards  or  stone  walls,  or  any  combination  thereof,  and  all 
brooks,  rivers,  ponds,  creeks,  ditches  and  hedges,  or  other  things 
which  shall  be  considered  equivalent  thereto,  in  the  judgment  of 
the  fence-viewers  within  whose  jurisdiction  the  same  nuiy  be,  shall 
be  deemed  legal  and  sufficient  fences. 

The  statute  further  provides,  that  the  respective  occupants  of 
lands  inclosed  with  fences,  shall  keep  up  and  maintain  partition 
fences  between  their  own  and  the  next  adjoining  inclosures,  in 
equal  shares,  so  long  as  both  parties  continue  to  improve  the  same. 
And  in  case  any  party  shall  neglect  to  repair  or  rebuild  any  parti- 
tion fence,  which  of  right  he  ought  to  maintain,  the  aggrieved 
party  may  complain  to  two  or  more  fence-viewers  of  the  town, 
who,  after  due  notice  to  each  party,  must  proceed  to  examine  the 
same,  and  if  they  shall  determine  that  the  fence  is  insufficient, 
they  are  required  to  signity  the  same  in  writing  to  the  delinquent 
occupant  of  the  land,  and  direct  him  to  repair  or  rebuild  the  same, 
within  such  time  as  they  shall  deem  reasonable  ;  and  if  such  fence 
shall  not  be  repaired  or  rebuilt  accordingly,  it  is  made  lawful  for 
the  complainant  to  repair  or  rebuild  the  same.  When  any  defi- 
cient fence,  built  up  or  repaired  by  any  complainant,  as  before 
provided,  shall  be  adjudged  sufficient  by  two  or  more  fence-viewers, 
and  the  value  of  such  repairing  or  building  up,  together  with 
their  fees,  shall  be  ascertained  by  a  certificate  under  their  hands, 
the  complainant  is  given  the  right  to  demand,  either  of  the  occu- 
pant or  owner  of  the  land  where  the  fence  was  deficient,  double 
the  sum  so  ascertained ;  and  in  case  of  neglect  or  refusal  to  pay 
the  sum  so  due,  for  one  month  after  demand  thereof  made,  the 
plaintiff  may  recover  the  same  with  interest  at  one  j)er  cent  a 
month,  in  an  action  for  money  paid,  laid  out  and  expended  ;  and 
all  lands  so  occupied  or  owned  as  aforesaid,  are  made  liable  to 
levy  and  seizure  or  sale  on  execution  issued  out  of  any  judgmen* 


460  ^^^'   ^^   FENCES. 

obtained  in  said  action,  and  neither  the  said  hinds  nor  the  personal 
property  of  the  said  defendant  shall  be  exempt  from  such  levy  and 
seizure  and  sale  as  aforesaid  (1  Taylor's  Stat.,  ch.  17,  §§  1-4). 

The  Supreme  Court  of  the  State  has  decided,  that  under  the 
statute,  the  occupants  of  lands  not  inclosed  with  fences,  are  not 
bound  to  maintain  partition  fences  between  such  land  and  the 
next  adjoining  inclosures,  and  that  the  decision  of  fence-viewers 
requiring  the  occupant  of  uninclosed  land  to  erect,  maintain  or 
pay  for  part  of  a  division  fence,  is  void.  It  was  further  decided, 
that  where,  in  an  action,  under  the  statute,  to  recover  twice  the 
value  of  certain  fencing  erected  by  the  plaintiff  on  the  division 
line  between  his  land  and  that  of  the  defendant's,  the  complaint 
did  not  aver,  nor  the  answer  deny,  that  the  defendant's  land  was 
inclosed,  but  the  answer  alleged  that  the  proceedings  of  the  fence- 
viewers  were  void,  it  was  error  to  refuse  evidence  offered  by  the 
defendant  to  show  that  the  land  was  uninclosed  {Bechtcl  v.  Weil- 
son,  19  Wis.  B.,  49).  And  the  same  court  held  that,  where 
swine  depasturing  in  the  highway  break  into  an  adjoining  close, 
though  the  fence  be  defective,  the  owner  is  liable ;  and  further, 
that  the  public  have  the  full  right  of  passage  along  and  over  the 
highways,  but  have  not  the  right  of  pasturage  therein  (^Harrison 
V.  Brown,  5  Wis.  R.,  27). 

The  statute  further  provides  that,  where  any  controversy  shall 
arise  about  the  right  of  the  respective  occupants  in  partition 
fences,  or  their  obligation  to  maintain  the  same,  either  party  may 
apply  to  two  or  more  fence-viewers  of  the  town  where  the  lauds 
lie,  who,  after  due  notice  to  each  party,  may  in  writing  assign  to 
each  his  share  thereof,  and  direct  the  time  within  which  each  party 
shall  erect  or  repair  his  share  of  the  fence,  in  the  manner  pro- 
vided ;  which  assignment,  being  recorded  in  the  town  clerk's 
office,  is  made  binding  upon  the  parties,  and  upon  all  succeeding 
occupants  of  the  lands,  and  they  are  obligated  thereafter  to  main- 
tain their  respective  portions  of  such  fence.  And  in  case  any 
party  shall  refuse  or  neglect  to  erect  and  maintain  the  part  of  the 
fence  assigned  to  him  by  the  fence- viewers,  the  same  may  be 
erected  and  maintained  by  the  aggrieved  party,  in  the  manner 
before  provided,  and  pay  recovered  therefore,  to  be  recovered  in  like 
manner. 

All  divisions  of  fences  made  by  fence-viewers,  according  to  the 
provisions  of  the  statute,  or  which  shall  be  made  by  owners  of 


STATUTES   OF   WIS.   RESPECTING   FENCES.  401 

adjoining  lands,  in  writing,  witnessed  by  two  witnesses,  signed, 
sealed  and  acknowledged  by  the  parties  making  the  same,  being 
recorded  in  the  town  clerk's  office,  are  made  good  and  valid 
against  the  parties  thereto,  their  heirs  and  assigns.  And  where 
in  any  controversy  that  may  arise  between  occupants  of  adjoining 
lands  as  to  their  respective  rights  in  any  partition  fence,  it  shall 
appear  to  the  fence-viewers  that  either  of  the  occupants  had, 
before  any  complaint  made  to  them,  voluntarily  erected  the  whole 
fence,  or  more  than  his  just  share  of  the  same,  or  otherwise  became 
proprietor  thereof,  the  other  occupant  is  required  to  pay  for  so 
much  as  may  be  assigned  to  him  to  repair  or  maintain,  the  value 
of  which  shall  be  ascertained  and  recovered  in  the  manner  pro- 
vided (1  Taylor's  Stat  ch.  17,  §§  5-8). 

All  partition  fences  are  required  to  be  kept  in  good  repair 
throughout  the  year,  unless  the  occupants  of  the  lands  on  both 
sides  shall  otherwise  mutually  agree.  And  where  lands  of  dif- 
ferent persons  which  are  required  to  be  fenced,  are  bounded  upon 
or  divided  by  any  river,  brook,  pond  or  creek,  which  of  itself,  in 
the  judgment  of  the  fence-viewers,  is  not  a  sufficient  fence,  and  it 
is  in  their  opinion  impracticable,  without  unreasonable  expense,  for 
the  partition  fence  to  be  made  in  such  waters,  in  the  place  where 
the  true  boundary  line  is,  and  the  parties  do  not  agree  to  join  in 
making  the  partition  fence,  the  fence-viewers  are  empowered  by 
the  statute  to  view  the  premises  and  settle  the  matter,  and  if  either 
party  neglects  or  refuses  to  make  or  maintain  his  part  of  the  fence 
as  adjusted  by  the  fence-viewers,  the  other  party  may  build  the 
whole  fence  and  recover  half  of  the  expense  thereof  of  the  delin- 
quent party  (1  Taylor's  Stat.,  ch.  11,  §§9-11). 

Provision  is  also  made  in  the  statute  in  cases  where  lands  have 
been  occupied  in  common,  without  a  partition  fence  between  the 
occupants,  and  one  shall  be  desirous  of  occupying  his  part  in 
severalty,  and  the  other  party  neglects  or  refuses  to  divide  with 
him  the  line  where  the  fence  ought  to  be  built,  for  the  fence- 
viewers  to  adjust  the  same,  which  is  made  binding  upon  the  par- 
ties, and  they  will  be  required  to  build  each  his  proportion  of  the 
line  fence  and  pay  his  proportion  of  the  expense  (1  Taylors  Stat., 
ch.  17,  §§  12,  13). 

It  is  further  provided  by  the  Wisconsin  statute,  that  M-here  one 
party  shall  cease  to  improve  his  land,  or  shall  open  his  inclosure, 
he  shall  not  take  away  any  part  of  the  partition  fence  belonging 


462  i^ir  OF  FENCES. 

to  him  and  adjoining  the  next  inclosure,  if  the  owner  or  occupant 
of  the  next  inclosure  will,  within  two  months  after  the  same  shall 
be  ascertained,  pay  therefor  such  sum  as  two  or  more  fence-viewers 
shall,  in  writing  under  their  hands,  determine  to  be  the  value  of 
such  partition  fence  belonging  to  such  party.  And  where  any 
uninclosed  land  shall  be  afterward  inclosed,  the  owner  or  occupant 
thereof  is  required  to  pay  one-half  of  each  partition  fence  stand- 
ing upon  the  line  between  his  land  and  the  inclosure  of  any  other 
owner  or  occupant,  and  the  value  thereof  must  be  ascertained  by 
two  or  more  fence-viewers  of  the  town  in  wanting  under  their 
hands,  in  case  the  parties  do  not  agree;  and  if  such  owner  or 
occupant  shall  neglect  or  refuse,  for  sixty  days  after  the  value  has 
been  so  ascertained,  and  demand  made,  to  pay  for  one-half  of  such 
partition  fence,  the  proprietor  of  such  fence  may  maintain  an 
action  for  such  value,  and  the  costs  of  ascertaining  the  same. 

In  all  cases  where  the  line  upon  which  a  partition  fence  is  to  be 
made,  or  divided,  is  the  boundary  line  between  towns,  or  partly 
in  one  town  and  partly  in  another,  a  fence-viewer  must  be  taken 
from  each  town.  And  where  a  partition  fence  running  into  the 
water  is  necessary  to  be  made,  the  same  is  required  to  be  done  in 
equal  shares,  and  in  case  either  party  sliall  refuse  or  neglect  to 
make  or  maintain  the  share  belonging  to  him,  similar  proceedings 
are  to  be  had  as  in  case  of  other  fences,  and  with  like  effect.  In 
all  cases  where  the  line  upon  which  a  partition  fence  is  to  be 
built  between  unimproved  lands  has  been  divided  by  the  fence- 
viewers,  or  by  agreement  in  writing  between  the  owners  of  sucli 
lands,  recorded  in  the  office  of  the  clerk  of  the  town,  tlie  several 
owners  thereof,  and  their  heirs  and  assigns  are  bound  forever  to 
erect  and  support  such  fences,  agreeably  to  such  division  (1  Tay- 
lor's Stat,  cL  17,  §§  14-18). 

By  another  provision  of  the  statute,  if  any  person  shall  deter- 
mine not  to  improve  any  part  of  his  land  adjoining  any  partition 
fence  that  may  have  been  divided  according  to  the  provisions  of 
the  statute,  and  shall  give  six  months's  notice  of  such  determina- 
tion, to  all  the  adjoining  occupants  of  lands,  he  shall  not  be 
required  to  keep  up  or  support  any  part  of  such  fence,  during 
the  time  his  lands  shall  be  open  and  unimproved ;  and  he  may 
thereafter  remove  his  proportion  thereof,  if  the  owner  or  occu- 
pant of  the  adjoining  inclosuie  will  not  p:.y  therefor,  as  provided 
by  section  fourteen,  hereinbefore  refer-^ed  '.o  (1  Taylor's  Stat,  ch 


STATUTES   OF   WIS.    RESPECTING   FEXCES.  463 

17,  §  19).  This  provision  is  similar  to  the  statute  of  Xew  York 
upon  the  same  subject,  so  that  the  decisions  of  the  courts  of  the 
latter  State  upon  the  question  may  be  applicable  here. 

The  Wisconsin  statute  further  provides  that  line  fences  on 
marsh  or  swamp  land  may  be  made  by  digging  a  ditch  on  the  line, 
or  by  banks  and  ditches  combined.  Equal  amount  cf  material 
and  of  space  occupied  must  be  taken  from,  or  occupy  each  side  of 
said  fence ;  provided,  said  banks  and  ditches  combined  shall  )iot 
exceed  twelve  feet  in  width  ;  and  provided,  further,  that  in  all 
cases  said  fences  shall  be  subject  to  the  decision  of  fence-viewers, 
pursuant  to  law.  And  it  should  be  stated,  that  the  overseers  of 
highways  in  the  several  towns  in  the  State  are  made  fence-viewers 
in  their  respective  towns  (1  Taijlor'^s  Stat.,  ch.  17,  §§  21,  22). 

The  statute  requires  that  upon  the  opening  of  any  private  road, 
the  \  erson  or  persons,  for  whose  benefit  the  same  was  granted, 
shall  immediately  make  and  keep  in  good  repair  all  fences  required 
by  the  opening  of  such  road  (1  Taylor'' s  Stat.,  ch.  19,  §  85).  And 
upon  the  opening  of  public  highways,  the  statute  provides  for  the 
removal  of  the  fences  necessary  for  the  use  of  the  road  (1  Tay- 
lor's Stat.,  ch.  19,  §98).  Railroad  companies  are  required  by  stat- 
ute to  fence  their  roads,  and  are  liable  for  damages  occasioned  in 
consequence  of  their  neglect  (1  Taylor''s  Stat.,  ch.  76,  §§  37-39). 
And  it  may  be  added  that  the  Supreme  Court  of  the  State  has 
held  that  the  statutes  in  relation  to  fences  and  fence-viewers,  do 
not  apply  to  ornamental  partition  fences,  between  town,  village 
or  city  lots ;  nor  do  they  prohibit  parties  from  contracting  for 
building  such  fences.  The  court  holds  that  tlie  fences  contem- 
plated by  the  statutes,  are  the  ordinary  fences  of  the  country, 
built  upon  or  inclosing  agricultural  lands  {Brooks  v.  Allen,  1  Wis. 
B.,  127). 

It  has  been  held  by  the  courts,  that  rails,  placed  along  the 
boundary  line  of  lands  for  the  purpose  of  being  laid  up  in  a  fence, 
though  not  actually  applied  to  that  use,  will  pass  by  a  conveyance 
of  the  lands,  there  having  been  a  manifest  appropriation  of  them 
for  the  use  of  the  land  {Conhlin  v.  Parsons,  1  Chandler^s  IL, 
240). 

The  question  has  been  settled  by  the  courts,  that  fence-viewera 
are,  by  the  statute,  authorized,  in  case  of  controversy  between  the 
occupants  of  adjoining  inclosed  lands  in  relation  to  their  rights  in 
partition  fences,  to  assign  to  each  of  them  his  share  of  such  fences, 


464  i^ir  OF  FEXCES. 

and  to  direct  tlie  time  within  which  they  shall  erect  or  repair 
their  respective  shares  ;  and  their  determination  or  assignment  is 
declared  to  be  conclusive  upon  the  parties  and  their  successors  in 
occupancy  as  to  the  points  so  decided.  And  further,  that  the 
fence-viewers  have  authority  also  to  ascertain  the  value  of  such 
part  of  a  partition  fence  as  one  of  the  parties  may  have  voluntarily 
built,  beyond  his  just  proportion  thereof,  and  the  statute  requires 
the  other  party  to  pay  the  value  so  ascertained.  However,  the 
fence-viewers  have  no  authority  to  try  or  determine  the  question 
whether  such  part  so  built  by  one  party  has  been  paid  for  by  the 
other ;  but  in  a  suit  to  recover  the  value  thereof  as  fixed  by  the 
fence-viewers,  the  defendant  must  set  up  and  prove  that  he  paid 
therefor  before  any  proceedings  by  the  fence-viewers  {Butler  v. 
Barlow,  2  Wis.  B.,  10). 

The  courts  hold,  that  it  is  only  the  occupants  of  lands  inclosed 
with  fences  who  are  required  by  the  Wisconsin  statute  to  main- 
tain partition  fences  between  their  own  and  the  next  adjoining 
iuclosures ;  and  if,  at  the  time  the  fence-viewers  act  in  determin- 
ing that  one  of  the  occupants  of  the  adjoining  lands  shall  erect 
and  maintain  or  pay  for  a  part  of  a  division  fence,  the  lands  of 
such  party  are  uninclosed,  their  proceedings  are  without  jurisdic- 
tion and  void.  The  occupants  of  such  lands  are  under  no  obliga- 
tion to  erect  fences  {Betchtel  v.  Neilson,  19  Wis.  B.,  49). 

An  action  of  trespass  was  brought  in  the  AVisconsin  courts 
charging  the  throwing  down  of  a  fence  inclosing  the  plaintiff's 
land,  -svhich  was  shown,  however,  to  be  wholly  on  land  of  the 
defendant,  who  had  duly  warned  the  plaintifi"  of  his  intent  to 
remove  the  same.  A  verdict  was  found  for  the  plaintiff  with 
nominal  damages.  The  Supreme  Court  of  the  State  held  that  it 
w^as  error  in  the  court  below  to  refuse  a  new  trial  moved  for,  on 
the  ground  that  the  verdict  was  unsupported  by  the  evidence 
(  Whalen  v.  Blackhurn,  14  Wis.  B.,  432). 

Eailroad  corporations  in  "Wisconsin  are  required  by  statute  to 
erect  and  maintain  fences  along  the  sides  of  their  roads,  and  for  a 
failure  to  do  so,  they  are  made  absolutely  liable  for  all  damages 
occasioned  by  reason  thereof.  And  in  an  action  against  a  com- 
pany in  such  case,  it  seems  to  be  no  defense  to  allege  that  the 
plaintiff  had  previously  trespassed  upon  the  lands  of  the  company 
constituting  the  line  of  its  road,  by  driving  the  same  cattle  upon 
or  across  the  road  {Sikes  v.  The   Chicago,  etc.  Bailway  Company^ 


STATUTES  OF  MIXX.  RESPECTIXG   FEXCES.  4G5 

21  Wis.  It.,  370  ;  Brovm  v.  The  Mllwaukie  Railroad  Company^ 
Ih.,  39).  But  where  a  railroad  company  erects,  maintains,  and 
keeps  in  good  condition  along  its  road  proper  fences  and  cattle- 
guards,  cattle  escaping  from  inclosures  adjoining  the  road  upon 
the  track  become  trespassers,  and  the  law  charges  the  owner  with 
negligence,  though  he  may  not  be  guilty  of  actual  carelessness  in 
allowing  them  to  escape  {Fisher  v.  The  Farmers''  Loan  Com- 
pany, 21  Wis.  R.,  73). 

In  the  State  of  Minnesota,  it  is  provided  by  the  statute,  that  all 
fences  fonr  and  a  half  feet  high  and  in  good  repair,  consisting  of 
rails,  timber,  boards  or  stone  walls,  or  any  combination  thereof, 
and  all  brooks,  rivers,  ponds,  creeks,  ditches  and  hedges,  or  other 
things  which  shall  be  equivalent  thereto,  in  the  judgment  of  the 
fence-viewers,  within  whose  jurisdiction  the  same  may  be,  or  any 
such  fences  as  the  parties  interested  may  agree  upon,  shall  be 
deemed  legal  and  sufticient  fences.  And  the  respective  occupants 
of  lands,  inclosed  with  fences,  are  required  to  keep  up  and  main- 
tain partition  fences  between  their  own  and  the  next  adjoining 
inclosures,  in  equal  shares,  so  long  as  both  parties  continue  to 
improve  the  same.  If  any  party  neglects  to  repair  or  rebuild  any 
partition  fence  which  he  ought  of  right  to  maintain,  the  party 
aggrieved  may  complain  to  the  town  supervisors  or  a  majorit}'  of 
them,  who  ma^^  determine  the  matter,  and  direct  the  delinquent 
occupant  to  build  or  repair  the  same  within  a  specified  time,  upon 
default  of  which  the  other  party  may  repair  or  rebuild  the  fence 
and  recover  double  the  value  thereof  as  certified  by  the  supervi- 
sors, and  all  controversies  respecting  partition  fences,  may  be  set- 
tled by  the  supervisors.  All  divisions  of  fences  made  by  super- 
visors or  by  agreement  of  the  owners,  in  writing,  signed,  sealed  and 
acknowledged,  being  recorded,  are  made  good  and  valid  against 
the  parties,  their  heirs  and  assigns.  And  all  partition  fences  are 
required  to  be  kept  in  good  repair  throughout  the  year,  unless  the 
occupants  of  the  lands  on  both  sides  otherwise  mutually  agree. 

"When  lands  of  different  owners  which  are  required  to  be  fenced, 
are  bounded  by  any  river,  brook,  pond  or  creek,  which  of  itself  is 
not  a  sufl^icient  fence  in  the  judgment  of  the  supervisors  of  the 
town,  and  the  parties  interested  disagree  respecting  the  location  of 
the  line  fence,  the  same  may  be  settled  by  the  supervisors.  All 
of  these  provisions  of  the  Minnesota  statute  are  quite  similar  to 
the  Wisconsin  statutes  upon  the  same  subject,  and  the  remaining 
S9 


4GG  LAW  OF  FENCES. 

provisions  of  the  statutes  are  almost  precisely  similar  to  the  Wis- 
consin statutes ;  so  that  all  that  is  necessary  is  to  refer  to  the  Wis- 
consin statutes  for  the  law  of  Minnesota  {Hevised  Stat,  of  1S66, 
ch.  18). 

But  th'ere  is  an  additional  provision  of  the  Minnesota  statute, 
giving  the  electors  of  each  town  at  their  annual  town  meeting, 
the  right  to  determine  the  time  and  manner  in  which  cattle,  horses, 
mules,  asses  and  sheep  are  permitted  to  go  at  large :  provided, 
that  no  cattle,  horses,  mules  nor  asses  be  allowed  to  go  at  large 
between  the  fifteenth  of  October  and  the  first  of  April  {R.  S.,  ch. 
10,  §  15,  suh.  6).  And  it  is  further  provided,  that  no  damage 
shall  be  recovered  by  the  owner  of  any  lands  for  damage  commit- 
ted (thereon  by  any  beasts  during  the  daytime,  until  it  shall  first 
be  proved  tliat  said  lands  were  inclosed  by  a  lawful  fence ;  and 
every  tliree  rail  fence,  four  and  a  half  feet  high,  constructed  of 
such  materials  and  in  such  a  manner  as  to  constitute  a  good  and 
substantial  fence  as  against  cattle,  horses,  asses  and  mules  two  or 
more  years  old  that  are  not  breachy,  or  any  fence  equal  thereto  in 
efiiciency,  are  to  be  deemed  a  lawful  fence ;  but  the  statute  is  not 
lo  be  construed  so  as  to  include  either  sheep  or  swine  or  any  other 
domestic  animals  not  exceeding  them  in  size  (i?.  S.,  ch.  19,  §  29). 
It  appears  that  all  laws  in  the  State  allowing  cattle  to  run  at  large, 
Lave  been  expressly  repealed  (7?.  -S".,  ch.  122). 

The  Supreme  Court  of  the  State  has  recently  decided  that  the 
common  law,  in  the  absence  of  action  by  the  town,  is  in  force 
from  April  to  October  fifteenth,  and  that  the  statute  prohibiting 
the  allowing  them  to  go  at  large  from  October  to  April,  is  but  in 
affirmance  of  the  common  law.  And  it  was  accordingly  decided, 
that  if  the  town  does  not  otherwise  order,  it  is  as  unlawful  for  cat- 
tle to  run  at  large  in  summer,  as  it  is  in  winter,  although  the 
owner  of  land  not  legally  fenced,  can  recover  nothing  for  damages 
done  in  the  daytime  by  cattle  over  two  years  old  and  not  breachy, 
and  this  though  it  be  in  winter,  when  all  running  at  large  is 
expressly  prohibited  by  statute  {Lock  v.  I^irst  Division  of  the  St. 
Paul  and  Pacific  Railroad  Company,  15  31  in.  R.,  350). 

In  the  State  of  Io"wa,  the  statute  provides  that  the  respective 
owners  of  lands  inclosed  with  fences,  shall  keep  up  and  maintain 
partition  fences,  between  their  own  and  the  next  adjoining 
inclosure,  so  long  as  they  improve  them,  in  equal  shares,  unless 
otherwise  agreed   between  them.     And  if  any  party  neglect  to 


STATL'TKS    OF  IOWA    RESPECTING    FENCES.  407 

repair  or  rebuild  a  jxartition  fence,  or  a  portion  thereof,  wliieli  he 
ought  to  maintain,  the  aggrieved  party  may  comphiin  to  the  fence- 
viewers,  who,  after  due  notice  to  each  party,  must  examine  tlie 
same,  and  if  tiiey  determine  that  tlie  fence  is  insuthcient,  must 
signify  it  in  writing  to  the  delinquent  occupant  of  the  land,  and 
direct  him  to  repair  or  rebuild  the  same  within  such  time  as  they 
judge  reasonable.  If  the  order  of  the  fence-viewers  is  not  com- 
plied with,  the  complainant  may  repair  or  rebuild  the  fence,  and 
the  value  thereof,  being  ascertained  by  the  fence-viewers,  may  be 
demanded  of  the  delinquent,  and  if  he  neglects  to  pay  it  for  one 
month  after  such  demand,  the  same  may  be  recovered  with  one 
per  cent  a  month  interest,  by  action. 

The  statute  also  contains  the  usual  provision  that  controversies 
arising  in  respect  to  the  erection  or  maintaining  partition  fences, 
shall  be  determined  by  the  fence  viewers,  and  if  either  party  neg- 
lects to  erect  or  maintain  the  part  of  the  fence  assigned  him  by 
the  fence-viewers,  the  aggrieved  party  may  do  the  work  himself, 
and  demand  and  recover  double  the  value  thereof,  in  the  manner 
provided  in  the  other  case.  And  all  partition  fences  are  required 
to  be  kept  in  good  repair  throughout  the  year,  unless  the  ownei-s 
on  both  sides  otherwise  agree. 

No  person  not  wishing  his  land  inclosed  and  not  occupying  uo-r 
usinfT  it  otherwise  than  in  common,  can  be  compelled  to  erect  or 
maintain  any  fence  between  him  and  an  adjacent  owner;  but 
w^here  he  incloses  or  uses  his  land  otherwise  than  in  common,  ho 
is  required  to  contribute  to  the  partition  fences  as  in  the  statute 
provided.  Provision  is  also  made  where  lands  owned  in  severalty 
have  been  inclosed  in  common,  are  desired  to  be  divided,  and  the 
parties  do  not  agree  as  to  the  fences,  for  the  fence-viewers  to 
adjust  the  same.  And  if  in  such  case,  where  one  of  the  owners 
desires  to  throw  open  any  portion  of  his  field  not  less  than 
twenty  feet  in  width,  and  leave  it  uninclosed  to  be  used  in  com 
mon  by  the  public,  he  may  do  so  on  giving  the  other  party  si.^ 
months  notice  thereof. 

And  the  statute  contains,  also,  the  usual  provision  requiring  the 
party,  who  shall  inclose  his  land  which  has  before  been  uninclosed, 
to  pay  one-half  of  the  partition  fence  then  standing,  to  be  adjusted 
by  the  fence-viewers. 

Where  a  division  of  fence  between  owners  of  improved  land* 
has   once    made  by  agreement  of  the  parties,  or  by  the  fence 


468  -S^TF   OF  FENCES. 

viewers,  and  recorded  in  the  town  clerk's  office,  tlie  same  is  made 
binding  ;  but  if  either  party  desires  to  lay  his  lands  in  common, 
he  may  do  so  in  the  manner  before  provided.  And  where  a 
division  fence  has  been  located  off  the  line  by  mistake,  the  same 
may  be  removed  on  to  the  line  at  any  time  within  six  months 
after  the  line  has  been  run,  upon  first  paying  or  offering  to  pay 
tlie  adverse  party  the  damages  occasioned  thereby.  A  person 
building  a  division  fence,  may  lay  the  same  upon  the  line,  so  that 
the  fence  shall  be  partly  on  one  side  and  partly  on  the  other,  and 
the  owner  is  given  the  same  right  to  remove  it  as  if  it  were  wholly 
on  his  own  land. 

A  fence  made  of  three  rails  of  good,  substantial  material,  or 
three  boards  not  less  than  six  inches  wide,  and  three-quarters  of 
an  inch  thick,  such  rails  or  boards  to  be  fastened  in  or  to  good 
substantial  posts,  not  more  than  ten  feet  apart,  where  rails  are 
used,  and  not  more  than  eight  feet  apart,  where  boards  are  used, 
or  in  either  wholly  or  in  part,  substantially  built  and  kept  in  good 
repair,  or  any  other  kind  of  fence,  which  in  the  opinion  of  the 
fence-viewers  shall  be  equivalent  thereto,  is  declared  to  be  a  law- 
ful fence :  provided  that  the  lowest  or  bottom  rail  or  board  shall 
not  be  more  than  twenty  nor  less  than  sixteen  inches  from  the 
ground ;  and  that  such  fence  shall  be  fifty-four  inches  in  height ; 
and  provided  further,  that  all  partition  fences  may  be  made  tight 
at  the  expense  of  the  party  desiring  it,  and  if  either  party  shall 
use  his  land  for  the  purpose  of  pasturing  swine  or  sheep,  he  is 
required  to  keep  his  share  of  the  partition  fence  sufficiently  tight 
to  restrain  such  sheep  or  swine  {Code  o/*1873,  tit.  11,  ch.  4). 

The  courts  of  Iowa  have  held,  in  terms,  that  the  comnion-law 
rule,  that  the  owner  of  cattle  is  required  to  keep  them  in  his  own 
close,  or  respond  in  damages  for  all  injuries  arising  from  their 
running  at  large,  is  not  in  force  in  the  State  of  Iowa.  Said, 
Wright,  C.  J.,  in  giving  the  opinion  of  the  court:  "Unlike  many 
of  the  States,  we  have  no  statute  declaring  in  express  terms,  the 
common  law  to  be  in  force  in  this  State.  That  it  is,  however,  has 
been  frequently  decided  by  this  court,  and  does  not,  perhaps, 
admit  of  controversy.  But  while  this  is  true,  it  must  be  under- 
derstood  that  it  is  adopted  only  so  far  as  it  is  applicable  to  us  as  a 
people,  and  may  be  of  a  general  nature."  The  learned  Chief  Jus- 
tice goes  on  then  to  argue  that,  in  the  State  of  Iowa,  from  the 
scarcity  of  timber,  it  must  be  many  years  before  their  extensive 


STATUTES   OF  IOWA   RESPECTING   FEXCES.  469 

prairies  can  be  fenced ;  and  their  luxuriant  growth,  sufficient  for 
thousands  of  cattle,  must  be  suffered  to  rot  and  decay  where  it 
grows,  unless  settlers  upon  their  borders  are  permitted  to  turn 
their  cattle  upon  them,  lie  therefore  concludes  that  the  princi- 
ple of  the  common  law  requiring  every  man  to  keep  his  cattle 
within  his  own  close,  is  inapplicable  to  the  condition  of  the  country 
and  people  of  Iowa,  and  consequently  was  not  in  force  in  the 
State  {Wagner  v.  Bmell^  3  Iowa  7?.,  39G,  402,  405).  And  in  a 
later  case,  the  same  court  held,  that  in  trespass  for  an  injury  done 
by  cattle  or  stock,  the  plaintiff,  in  order  to  recover  damages,  must 
show  that  his  fence  was  sufficient  to  turn  ordinary  stock,  and  the 
doctrine  of  the  case  of  Wagner  v.  Bissell,  was  cited  and  followed 
{Ileath  V.  CoJtenhacJc,  5  loiva  IL,  490 ;  hut  vide  0''Farrall  v. 
Simplot,  4  ih.^  381). 

It  has  been  held  by  the  Supreme  Court  of  the  State,  that  the 
provisions  of  the  Code,  regulating  partition  fences,  is  not  applica- 
ble as  between  the  owner  in  fee  of  land  and  a  company  having  a 
right  of  way  for  a  railroad  over  such  land  {Henry  v.  The  Duhuque 
etc.  Railroad  Company^  2  Iowa  R.,  521).  But  it  has  been 
recently  held  by  the  same  court  that,  as  to  thii-d  jiersons,  it  is  the 
duty  of  railroad  companies  to  fence  their  roads,  and  to  keep  the 
gates  at  private  crossings  closed  and  in  repair;  but  where  the 
company  is  not  in  fault,  and  the  fence  is  thrown  open  by  a  third 
person,  such  third  person  is  liable  for  a  resulting  injury  instead  of 
tlie  railroad  company  {Russell  v.  Hanley^  20  Iowa  R.,  219). 

The  courts  hold  that  the  proceedings  of  fence-viewers  under  the 
statute  should  receive  indulgent  consideration,  and  it  was  further 
held  that  the  statute  does  not  in  terms  require  a  written  notice, 
though  such  notice  should  properly  be  in  writing  and  proceed 
from  the  fence-viewers  ;  but  where  the  party  appears  upon  notice 
verball)'  given  by  the  otiier  party,  and  without  objection,  it  is  a 
sufficient  compliance  with  the  statute  {Talbot  v.  BlacMege,  22  Iowa 
R.,  572). 

It  has  been  declared  by  the  Supreme  Court  of  the  State  that, 
where  two  persons  have  fields  fenced  in  common,  and  one  of  them 
willfully  turns  stock  into  such  inclosure,  he  is  liable  for  the  dam- 
age done  by  such  stock  to  the  crops  of  the  other,  and  it  is  no 
defense  that  the  inclosure  was  not  surrounded  by  a  lawful  fence 
{Broadwell  v.  Wilcox,  22  Iowa  R.,  508).  The  court,  in  an  action 
of  trespass,  after  defining  a  lawful  fence,  instructed  the  jury,  that 


470  i^TT  OF  FENCES. 

whether  the  fence  was  a  lawful  fence,  and  a  good  one,  was  in  the 
discretion  of  the  jury ;  and  it  was  held,  that  the  word  discretion, 
in  its  proper  sense,  implies  judgment,  and  that  used  in  this  sense, 
the  instruction  was  correct  {McManus  v.  F'man,  4  lovja  R.,  283). 
And  the  same  court,  in  a  later  case  held,  in  respect  to  the  requi- 
sites of  a  lawful  fence,  that  a  fence  of  a  less  height  than  four  feet 
and  six  inches  may,  nnder  the  provisions  of  the  statute,  be  a  law- 
ful fence  if  it  affords  equal  strength  and  security  to  the  inclosure. 
And  further,  that  in  a  contest  respecting  the  lawful  character  of 
such  a  fence,  the  opinion  of  the  fence-viewers  as  to  its  sufficiency 
is  admissible  in  evidence  {Phillies  v.  Oyster,  32  Iowa  B.,  257). 
A  case  came  before  the  Supreme  Court  of  the  State  several 
years  ago,  in  which  it  appeared  that  A.,  having  built  a  portion  of 
a  partition  fence,  served  notice  npon  B.,  owner  of  adjacent  land, 
requiring  him  to  build  half  the  division  fence,  B.  complied,  and 
by  subsequent  removals  of  portions  of  this  fence,  A.  left  B.'s  land 
open  to  the  intrusion  of  cattle,  and  B.  was  obliged  to  keep  build- 
ing new  pieces  till  he  had  built  the  whole  length  of  the  line.  He 
then  sued  A.  for  the  value  of  one-half  of  the  fence.     The  court 
held,  that  B.  might  infer  tliat  if  he  built  one-half  the  fence,  A. 
would  build  the  other  half,  or  allow  so  much  of  the  old  fence  to 
remain  as  was  necessary  as  a  division  fence.     And,  therefore,  it 
was  further  held,  that  it  was  properly  left  to  the  jury  to  determine 
whether  A.  received  a  common  benefit  from  B.'s  fence ;  whether 
he  had  joined  his  own  fence  thereto,  and  whether  it  protected  his 
land   as   it  did   B.'s ;  with   directions,  if  they  found   these   facts 
existed,  to  return  a  verdict  for  the  plaintiff  {Schnare  v.  Gehman, 
9  loiva  i?.,  283).     But  in  a  late  case  before  the  same  court,  it 
appeared  that  there  was  an  agreement  between  adjoining  owners 
to  inclose  their  lands  in  common.     The  court  held  that  the  effect 
of  the  agreement  was,  for  the  time  being,  to  release  each  party 
from  the  obligation  to  build  a  partition  fence,  and  that  cattle  of 
one,  when  found  damage-feasant  upon  the  land  of  the  other,  were 
liable  to  be  distrained,  regardless  of  their  owner's  intention  in 
turning  them  in  upon  his  own  land  (  Winters  v.  Jacobs,  29  Iowa 
E.,  115).     And  in  another  case  before  the  same  court,  it  appeared 
that  an  ox  which  was  allowed  by  the  owner  to  graze  on  a  com 
mon  entered  a  field  which  was  not  inclosed  by  a  lawful  fence,  and 
died  in  consequence  of  eating  corn  therein.     The  court  held,  that 
the  owner  of  the  ox  could  not  recover  the  value  of  the  animal  of 


STATL'TES   OF  IOWA   RESPECTING    FENCES.  471 

the  owner  of  the  corn,  because  the  latter  was  under  no  obligation 
to  fence  his  field  as  against  the  public,  the  right  to  pasture  cattle 
upon  commons  in  the  State  of  Iowa  being  permissive  merely 
{Ilerold  V.  Meyers,  20  Iowa  A*.,  378). 

The  statute  of  Iowa  makes  railway  corporations  liable  for  stock 
killed  on  the  track  of  their  roads  at  all  points  where  they  have  a 
right  to  fence  along  the  sides  of  the  road  {Laws  of  1SG2,  ch.  1G9). 
The  Supreme  Court  of  the  State  has  held  that  this  provision  of 
the  statute  does  not  include  a  highway  crossing  {Seioard  v.  The 
Chicago,  etc.  Railroad  Company,  30  Iowa  H.,  551).  But  the 
same  court  has  held,  that,  where  a  railroad  and  highway  run  par- 
allel and  intersect  for  some  distance  before  crossing,  the  railroad 
company,  in  order  to  protect  itself  from  liability,  under  the  law, 
should  build  its  fences  to  and  erect  its  cattle-guards  at  the  crossing 
{Andre  v.  The  North-western  Railroad  Company,  30  Iowa  R., 
107).  It  is  held,  however,  that  a  railroad  company  is  not  liable 
for  stock  killed  on  its  track  unless  it  has  actual  or  implied  notice 
that  the  fence  was  down  or  gate  open,  and  a  reasonable  time  thei-e- 
after  to  put  the  same  in  repair  or  proper  condition  {Aylesivorth  v. 
The  Chicago,  etc.  Railroad  Company,  30  Iowa  R.,  459 ;  Dewey 
V.  The  Same,  31  ih.,  373).  A  i-ailroad  company  is  liable,  under 
the  statute,  for  damages  caused  by  the  killing  of  sheep  which  have 
strayed  on  the  track  through  a  defective  fence  ei-ected  by  the 
company  {Ilinman  v.  The  Chicago,  etc.  Railroad  Company,  28 
Iowa  R.,  491).  It  seems  that  the  statute  does  not  apply  in  all 
cases  where  there  is  a  strict  or  abstract  right  to  fence  the  road  of 
a  railway  company,  if  the  injury  occurs  where  to  build  a  fence  is 
improper  {Davis  v.  Burlington,  etc.  Railroad  Company,  26  Iowa 
R.,  549).  And  in  all  these  cases  against  railroad  companies  for 
injuries  to  cattle,  etc.,  the  burden  of  proof  is  on  the  plaintiff  to 
show  the  liability  of  the  company  {Co?nstock  v.  Des  Moines,  etc. 
Railroad  Company,  32  Iowa  R.,  370). 

It  may  be  of  interest  to  some  to  state,  that  the  Supreme  Court 
has  held  that  a  fence  built  upon  public  land,  even  by  mistake, 
passes  with  the  freehold  to  the  purchaser  from  the  government ; 
and  if  such  fence  is  detached  from  the  realty  by  a  wrong-doer,  the 
purchaser's  right  to  it  is  not  divested.  And  in  such  a  case,  ? 
removal  of  the  fence  by  the  party  who  made  it,  was  held  to  con 
Btitute  him  a  wrong-doer  {Burleson  v.  Temple,  2  Grceneh  R.,  542). 
And  the  same  court  has  held  that  rails,  laid  up  in  a  fence  inclos- 


472  LA  W  OF  FENCES. 

ing  a  field,  or  a  portion  of  a  field,  are  a  part  of  the  freehold, 
although  the  fence  is  not  staked  with  stakes  sunk  into  the  ground 
{Smith  V.  Carroll,  4  Greene's  i?.,  146).  This  doctrine  is  not 
peculiar  to  the  State  of  Iowa,  but  may  be  applied  in  any  of  the 
States  where  it  is  not  changed  by  legislative  enactment. 


CHAPTER  XL. 

STATUTES    OF   THE    SEVERAL    STATES    EESPECTING    FENCES  —  LAWS    OF 
MISSOURI  —  LAWS     OF    KANSAS  —  LAWS     OF     NEBRASKA,     NEVADA, 

OREGON  AND  CALIFORNIA STATUTES  AND  DECISIONS  OF  THE  COURTS 

UPON  THE  SUBJECT  OF  FENCES  IN  THOSE  STATES. 

In  the  State  of  Missouri,  the  statute  provides  that  all  fields  and 
inclosures  shall  be  inclosed  by  hedge  or  with  a  fence  sufliciently 
close,  composed  of  posts  and  rails,  posts  and  palings,  posts  and 
planks,  palisades  or  rails  alone,  laid  up  in  the  manner  commonly 
called  a  worm  fence,  or  of  turf  with  ditches  on  each  side.  Hedges 
are  required  to  be  at  least  five  feet  high,  posts  and  plank,  or  palis- 
ades at  least  four  and  a  half  feet  high ;  those  composed  of  turf 
must  be  at  least  four  feet  high,  and  trenches  on  either  side  at 
least  three  feet  wide  at  the  top  and  three  feet  deep  ;  and  what  is 
commonly  called  a  worm  fence,  must  be  five  feet  to  the  top  rail, 
and  the  corners  must  be  locked  with  strong  rails,  poles  or  stakes. 

In  case  of  trespass  by  horses,  cattle  or  other  stock,  or  hog,  shoat 
or  pig,  upon  an  inclosure  inclosed  by  a  legal  hedge  or  fence,  the 
owner  of  the  animal  is  liable  for  the  first  trespass  to  pay  the  actual 
damage,  for  the  second  trespass  double  damages,  and  for  the  third 
offence,  the  party  injured  may  kill  the  beasts  so  trespassing,  with- 
out being  answerable  for  the  same.  But  if  the  person  damnified 
for  the  want  of  a  sufficient  fence  or  hedge,  shall  hurt  or  kill  any 
such  animal,  or  cause  the  same  to  be  injured  or  killed,  he  is 
required  to  satisfy  the  owner  of  such  animal  in  double  damages, 
with  costs. 

The  statute  further  provides  that  no  division  fence  or  part  of  a 
fence,  by  which  the  lands  of  different  owners  are  inclosed,  shall 
be  removed  without  the  mutual  consent  of  said  owners,  unless  the 
party  desiring  to  remove  said  fence  shall  first  give  six  months' 


STATUTES   OF  MO.   RESPECTING   FENCES.  47;^ 

notice,  in  writing,  to  the  owner  or  owners  of  his  intention  tc 
remove  the  said  fence ;  and  after  the  expiration  of  the  time  of 
said  notice,  lie  may  remove  the  same  (1  Wagner's  Stat.,  ch.  71, 
§§1-7). 

From  the  fact  that  the  right  of  the  party  to  kill  trespassing 
animals  is  given  by  statute,  to  enable  him  to  justify  such  killing, 
lie  must  bring  himself  strictly  and  exactly  within  the  provisions 
of  the  statute  {Early  v.  Fleming,  16  Mo.  R.,  154 ;  vide  Canefox, 
V.  Crenshaw,  2-i  ih.,  199 ;  Iloux  v.  Seat,  20  ib.,  178). 

There  is  another  provision  of  the  statute  under  which  a  party  who 
has  a  good  and  substantial  fence  erected  on  the  line  of  his  land, 
and  the  person  owning  the  lands  adjoining,  shall  make  or  cause  to 
be  made  an  inclosure  on  the  opposite  side  of  such  fence,  so  that 
the  same  may  answer  the  purpose  of  inclosing  his  field  or  inclo- 
sure, may  require  the  payment  of  one-half  the  value  of  so  much 
of  the  fence  as  may  serve  as  a  partition  fence.  And  if  the  par- 
ties fail  to  agree  as  to  the  value  of  such  fence,  the  statute  provides 
a  way  by  which  the  matter  shall  be  fixed  by  three  disinterested 
freeholders  of  the  town. 

The  statute  further  requires  every  person  owning  a  part  of  a 
partition  fence,  to  keep  the  same  in  good  repair,  and  any  person 
refusing  or  neglecting  to  keep  his  or  her  portion  of  any  such  fence 
in  good  condition,  is  made  liable  for  double  damages  which  any 
party  may  sustain  from  such  refusal  or  neglect  to  keep  the  same 
in  repair.  In  case  parties  cannot  agree  in  dividing  or  apportion- 
ing any  division  fence,  provision  is  made  for  settling  the  same 
(1   Wagner's  Stat.,  ch.  57). 

It  is  held  that  by  the  law  of  Missouri,  the  owners  of  cattle  are 
under  no  obligation  to  fence  them  in,  and  damages  cannot  be 
recovered  for  the  trespasses  of  such  cattle,  unless  the  fields  tres- 
passed upon  were  legally  inclosed  {Gorman  v.  The  Faeijic  Bail- 
road  Company,  26  Mo.  R.,  441). 

In  a  case  before  the  Supreme  Court  of  the  State,  it  appeared 
that  two  adjoining  proprietors  of  land  built  a  partition  fence  with 
an  agreement  that  each  one  should  have  the  portion  of  the  fence 
he  should  make,  and  one  of  the  proprietors  built  his  fence  over  the 
line  and  on  the  land  of  the  other,  who  sold  his  tract  to  a  pur- 
chaser who  had  no  notice  of  such  agreement.  The  court  held  that 
the  purchaser  was  entitled  to  the  fence  {Climer  v.  Wallace,  28 
Mo.  R.,  556).  But  in  another  later  case,  the  same  court  hold 
60 


474  i^Tl^  OF  FEXCES. 

that,  wliere  one  of  two  coterminous  proprietors  erects  a  division 
fence,  and,  hj  mistake,  places  it  on  the  other's  land,  he  is  entitled 
to  remove  it  to  the  true  line  within  a  reasonable  time  after  dis- 
covering the  mistake  {3fatson  v.  Calhoun,  44:  3Io.  B.,  3GS). 

The  Supreme  Court  of  Missouri  has  held,  that  it  is  not  the 
duty  of  a  landowner  to  fence  against  animals  ferce  naticrce,  but 
the  owner  of  such  animals  must  keep  them  at  his  peril,  and  he  is 
liable  for  damage  done  by  thefu  on  another's  land,  whether  fenced 
or  not  {JJanefox  v.  Crenshaw,  24  Mo.  R.,  199).  And  it  is  here 
held  by  the  same  court,  that  a  license  of  the  grantor  of  lands  to 
erect  partition  fences  is  not  binding  on  a  grantee  without  notice, 
and  is  revoked  by  the  conveyance  {IIoux  v.  Seat,  26  Mo.  E.,  178). 
The  Supreme  Court  of  the  State  has  recently  held  that  a  rail- 
road company  is,  under  the  laws  of  Missouri,  liable  for  injuries  to 
horses,  cattle,  etc.,  only  when  it  appears  that  the  animal  injured 
entered  on  the  road,  in  consequence  of  the  absence  of  fences  or 
cattle-guards,  at  a  point  on  tlie  line  of  the  road,  which  the  com- 
pany was  bound  to  secure  in  that  manner  {Cecil  v.  Pacific  Rail- 
road Company,  47  Mo.  R.,  246).  And  the  same  court  has  even 
more  recently  held,  that  the  legislature  has  the  power  to  require 
a  railroad  company  to  fence  in  the  land  adjoining  their  track ; 
that  such  a  statute  is  not  unconstitutional  as  subjecting  one  person 
to  expense  for  the  sole  benefit  of  another ;  that  its  main  and  lead- 
ing object  is  the  protection  of  the  public,  and  that  the  protection 
of  the  property  of  adjacent  proprietors  is  merely  an  incidental 
object  {Trice  v.  Hannihal,  etc.  Railroad  Company,  49  Mo.  R., 
438). 

In  an  action  against  a  railroad  company  for  killing  a  cow  on  its 
track,  the  proof  showed  that  the  accident  occurred  within  the 
limits  of  a  town  corporation,  as  shown  by  the  paper  plat  of  the 
town,  but  in  fact  away  from  any  street,  and  in  an  open  prairie. 
The  town  corporation  had  been  dissolved  or  suspended.  The 
Supreme  Court  of  Missouri  held,  that  tlie  i-ailroad  company  was 
liable  for  the  actual  damages  arising  from  a  failure  to  fence  the 
track  at  the  point  of  the  accident,  without  proof  of  otlier  negli- 
gence {Ila  v.  The  Hannihal,  etc.  Railroad  Company,  45  Mo.  R., 
469).  But  the  same  court  has  recently  held,  that  the  liabihty 
imposed  by  the  Missouri  General  Statutes  of  1865,  chapter  63, 
section  43,  upon  a  railroad  company  failing  to  fence  its  tracks,  for 
"  double  the  amount  of  all  damages  which  shall  be  done  by  its 


STATUTES   OF  KAXS.   RESPECTING   FENCES.  475 

agents,  engines  or  cars,  to  horses,  cattle,  mules  or  other  animals  " 
on  the  road,  is  only  incurred  where  the  animal  is  directly  injured  ; 
as,  by  being  run  over ;  that  the  statute  does  not  extend  to  a  case 
where  the  animal,  which  has  strayed  upon  the  track  through  a 
defect  in  the  fence,  becomes  frightened  b_y  the  approach  of  a  train, 
and  is  injured  in  jumping  off  the  track.  And  it  was  declared  that 
such  a  statute  should  be  construed  so  as  to  etiect  its  objects ;  and 
that  one  main  object  is  to  protect  passengers  from  the  danger  of 
collisions  with  animals  {Lafferty  v.  The  Hannibal,  etc.  Railroad 
Comjyany,  44  3fo.  7?.,  21)1). 

In  the  State  of  Kansas,  the  statute  requires  that  all  fields  and 
inclosures  shall  be  inclosed  with  a  fence  sufficiently  close,  com- 
posed of  posts  and  rails,  posts  and  palings,  posts  and  planks  or 
palisades,  posts  and  wire,  rails  alone,  laid  up  in  the  manner  com- 
monly called  a  worm  fence,  or  turf,  M-ith  ditches  on  each  side,  of 
stone,  or  a  hedge,  composed  either  of  thorn  or  osage  orange.  All 
fences  composed  of  posts  and  rails,  posts  and  palings,  posts  and 
planks  or  palisades,  or  posts  and  wire,  must  be  at  least  four  and 
one-half  feet  high;  those  of  turf  must  be  at  least  four  feet  high, 
and  staked  and  ridered,  with  a  ditch  on  either  side  at  least  three 
feet  wide  at  the  top,  and  three  feet  deep  ;  a  worm  fence  must  be 
at  least  four  and  one-half  feet  high  to  the  top  of  the  rider  ;  or  it 
not  ridered,  it  must  be  locked  with  strong  rails,  posts  or  stakes. 
The  bottom  rail,  board  or  plank  in  any  fence  must  not  be  more 
than  two  feet  from  the  ground,  in  any  township ;  and  in  those 
townships  where  hogs  are  not  prohibited  from  running  at  large, 
it  must  not  be  more  than  six  inches  from  the  ground ;  and  all 
such  fences  are  required  to  be  substantially  built,  and  sufficiently 
close  to  prevent  stock  from  going  through.  Fences  composed  of 
stone  must  be  four  feet  high,  and  at  least  eighteen  inches  wide  at 
the  bottom,  and  twelve  inches  wide  at  the  top,  and  hedges  must 
be  of  such  height  and  thickness  as  will  be  sufficient  to  protect  the 
field  or  inclosure.  Post  and  wire  fences  must  be  constructed  of 
posts  of  ordinary  size  for  fencing  purposes,  and  set  in  the  ground 
at  least  two  feet  deep,  and  not  more  than  twelve  feet  apart,  witii 
holes  through  the  posts,  or  staples  on  the  side,  not  more  than 
fifteen  inches  apart,  to  admit  four  separate  strands  of  fence  wire, 
not  smaller  than  number  nine,  and  must  be  provided  witli  rollers 
and  levers,  at  suitable  distances,  to  strain  and  hold  the  wire 
straight  and  firm.     All  such  fences,  and  all  brooks,  rivers,  creeks 


47G  LAW  OF  FENCES.  ' 

ditches  and  constructions  equivalent  thereto,  in  the  judgment  of 
the  fence-viewers  within  whose  jurisdiction  the  same  may  be,  are 
deemed  legal  and  sufHcient  fences  {Gen.  Stat,  of  1868,  ch.  40, 
art.  1). 

It  is  further  declared  by  the  statute  that  the  trustee,  clerk  and 
treasurer  in  each  township  in  the  State  shall  be  fence-viewers  in 
such  township,  any  two  of  whom  are  authorized  to  discharge  the 
duties  of  such  officers  under  the  act,  and  they  are  required,  when 
requested,  to  view  any  fence  and  perform  any  duty  required  of 
them  under  the  act,  under  a  penalty  of  ten  dollars  for  any  neglect, 
and  liability  to  the  party  injured  in  consequence  of  such  neglect. 
Each  fence-viewer  is  entitled  to  two  dollars  per  day  for  the  time 
necessarily  employed  {Gen.  Stat.,  ch.  40,  art.  2). 

The  statute  further  provides  that  the  ow^ners  of  adjoining  lands 
shall  keep  up  and  maintain  in  good  repair  all  partition  fences 
between  them,  in  equal  shares,  so  long  as  both  parties  continue  to 
occupy  or  improve  such  lands,  unless  otherwise  agreed.  If  any 
party  neglect  to  repair  or  rebuild  a  partition  fence,  or  the  portion 
thereof  which  he  ought  to  maintain,  the  aggrieved  pai-ty  may 
complain  to  the  fence-viewers,  wlio,  after  due  notice  to  each  party, 
must  examine  the  same,  and  if  they  determine  the  fence  to  be 
insufficient,  they  must  signify  it  in  Ma-iting,  to  the  delinquent  and 
direct  him  to  repair  or  rebuild  the  same  within  such  time  as  they 
may  judge  reasonable.  And  if  such  fence  be  not  repaired  or 
rebuilt  as  required,  the  complainant  may  do  tlie  work,  and  on  the 
fence  being  adjudged  sufficient  by  the  fence-viewers,  and  the  value 
thereof  ascertained  by  such  fence-viewers,  he  may  recover  the 
same  of  such  delinquent.  All  controversies  respecting  partition 
fences  must  be  settled  by  the  fence-viewers,  and  their  determina- 
tion will  be  binding  on  the  parties.  All  assignments  of  the  fence- 
viewers  must  be  certified  and  signed  by  them,  and  must  contain  a 
certain  description  of  the  lands  divided  by  such  partition  fence, 
and  the  names  of  the  owners  thereof.  The  owners  may  also  agree 
in  respect  to  their  fences,  but  the  agreement  must  be  acknowledged 
or  proved  as  conveyances  of  land,  and  recorded  in  the  office  of  the 
register  of  deeds  of  the  proper  county.  Provision  is  also  made 
for  a  party  building  more  than  his  share  of  a  partition  fence 
before  any  complaint  made  to  the  fence-viewers,  may  recover  its 
value.  All  partition  fences  must  be  kept  in  good  repair  through- 
out the  year,  unless  the  owners  of  the  land  otherwise  agree.     No 


STATUTES   OF  A' A  AS.    RESPECTING   FENCES.  477 

person  not  wishing  his  land  inclosed,  not  using  it  otherwise  than 
in  common,  can  be  required  to  contribute  to  erect  or  maintain  a 
partition  fence,  and  where  lands  owned  in  severalty  have  been 
inclosed  in  common  without  a  partition  fence,  and  one  of  the 
owners  is  desirous  to  occupy  his  land  in  severalty,  and  the  other 
refuses  to  divide  the  line  where  the  fence  should  be  built,  and 
build  his  part  of  such  fence,  the  party  so  desiring  may  apply  to 
the  fence-viewers  and  have  the  matter  adjusted,  "Where  one  party 
may  desire  to  throw  his  land  open  and  leave  it  unincloscd,  he  may 
remove  his  portion  of  the  division  fence,  unless  tlie  adjoining 
owner  or  occupant  will,  within  two  months  after  the  same  shall 
be  ascertained,  pay  therefor  the  sum  found  and  ascertained  by  the 
fence-viewers.  And  no  person  not  improving  his  land  adjoining 
a  partition  fence  that  may  have  been  divided,  will  be  required  to 
keep  a  partition  fence,  provided  he  shall  give  six  months'  notice 
of  his  determination  not  to  improve  his  land,  to  the  adjoining 
owners  or  occupants,  but  the  notice  can  only  be  served  between 
the  first  day  of  July  and  the  first  of  October,  and  he  may  there- 
after remove  his  portion  of  the  fence,  unless  the  adjoining  owner 
will  pay  him  the  value  thereof  as  before  provided.  When  land 
which  has  been  uninclosed  is  inclosed,  the  owner  thereof  is 
required  to  pay  for  one-half  of  each  partition  fence  between  his 
land  and  the  adjoining  lands,  the  value  to  be  ascertained  and  cer- 
tified by  the  fence-viewers,  in  case  the  parties  do  not  agree.  And 
if  the  party  neglects  to  pay  the  value  of  the  fence  for  sixty  days, 
the  owner  of  the  partition  fence  may  recover  the  same  by  action. 

Where  the  line  upon  which  a  partition  fence  is  to  be  made  is 
the  boundary  line  between  townships,  the  division  of  the  fence 
must  be  made  by  the  fence-viewers  of  the  two  townships.  A  par- 
tition fence  may  be  laid  upon  the  line,  partly  upon  one  side  and 
partly  on  the  other  side  {Gen.  Stat.,  ch.  40,  art.  3). 

Any  person  liable  to  contribute  to  the  erection  of  a  partition 
fence,  neglecting  or  refusing  to  make  or  maintain  the  same,  is  not 
allowed  to  have  and  maintain  any  action  for  damages  incurred, 
but  will  be  liable  to  pay  to  the  party  injured  all  damages  which 
shall  accrue  to  his  lands  and  crops,  fruit  trees  and  shrubbery 
thereon,  and  fixtures  connected  with  said  land,  to  be  assessed  by 
the  fence-viewers.  And  where  any  horse,  mule  or  ass,  or  any 
neat-cattle,  hogs  or  sheep,  or  other  domestic  animals,  shall  break 
into  any  inclosure,  the  owner  or  occupant  may  apply  to  the  fence- 


478  LAW  OF  FENCES. 

viewers,  and  have  tlie  same  examined  and  damages  assessed,  which 
may  be  recovered  by  a  civil  action,  and  the  assessment  of  the 
fence-viewers  is  made  prima  facie  evidence  of  the  amount  of 
damages. 

Where  a  fence  has  been  built  by  mistake  upon  the  land  of 
another,  the  owner  may  remove  it  on  to  the  line  within  six  months 
after  the  line  has  been  run,  but  he  is  required  to  pay  any  damage 
to  the  soil  of  the  other  party  by  reason  of  such  fence.  But  it  can- 
not be  thus  removed  if  it  was  made  of  timber  or  other  material 
taken  from  the  land  on  which  it  is  built,  until  the  owner  of  the 
timber  is  paid  the  value  thereof;  nor  can  it  be  removed  at  a  time 
when  it  will  throw  open  or  expose  the  crop  of  the  other  party, 
and  not  until  a  reasonable  time  has  expired  after  the  crop  is 
secured.  Animals  breaking  into  an  inclosure  sufficiently  fenced  may 
be  taken  up  and  restrained  until  the  damages,  and  costs  of  keeping 
them  are  paid,  and  any  person  or  corporation  who  shall  injure  any 
domestic  animal  upon  premises  not  inclosed,  is  required  to  pay  the 
damages  {Gen.  Stat..,  ch.  40,  art.  4). 

Osage  orange  plants  set  out,  not  less  than  one  year  old,  around 
any  piece  of  ground,  not  more  than  160  acres,  not  less  than  ten 
acres  of  which  shall  be  occupied  and  cultivated,  is  declared  a  law- 
ful fence,  by  the  statute,  and  provisions  are  made  as  to  how  such 
hedges  shall  be  cultivated  and  the  like,  and  damages  to  such 
hedges  by  domestic  animals  may  be  recovered  in  the  manner  pre- 
scribed by  the  statute  {Gen.  Stat.,  ch.  40,  act  ajyproved  March  dd, 
1868). 

It  has  been  declared  by  the  Supreme  Court  of  the  State,  that 
the  effect  of  the  Kansas  statute,  relating  to  inclosures  is,  that 
before  a  person  can  recover  for  injuries  done  to  his  crops  by  roving 
stock,  he  must  protect  such  crops  by  a  lawful  fence.  Failing  to 
have  such  fence,  he  is  deemed  by  the  law  to  be  so  negligent  of  his 
property  that  he  cannot  recover  damages  for  trespass  thereon, 
occasioned  by  reason  of  the  defective  fence.  It  seems  to  be  the 
object  of  the  law  to  permit  stock  to  run  at  large  on  the  prairie 
and  relieve  the  owners  from  an  action  for  damages,  should  they 
wander  upon  the  land  of  another,  unprotected  by  a  lawful  fence 
{LarJcin  v.  Taylor,  5  Kansas  R.,  433).  But  the  Supreme  Court 
of  the  State  has  held,  that,  although  the  Kansas  legislature,  by 
enacting  certain  fence  laws,  and  laws  regulating  the  running  at 
large  of  stock,  have  impliedl}'  declared  that  no  action  shall  lie  for 


STATUTES   OF  KEB.   EESPECTIXG   FEXCES.  4*9 

injuries  done  to  real  estate  by  roaming  cuttle,  unless  sucli  fence  be 
made-;  tliey  liave  not  enacted  any  law  giving  to  a  person  rights 
upon  another's  land,  whether  it  be  fenced  or  not  ( Union  PaclJiG 
Railroad  Company  v.  Rollins^  5  Kans.  i?.,  167 ;  and  vide  Cal- 
kins V,  21atheujs,  lb.,  191 ;  Maltby  v.  Dlhel,  lb.,  430).  And  tlie 
same  court  has  recently  held  that,  in  a  township  in  which  the  hog 
law  of  the  State  has  not  been  suspended,  it  is  no  defense  to  an 
action  for  damages  done  to  a  crop  by  hogs  suffered  to  run  at  large, 
that  the  crop  is  not  inclosed  by  a  legal  and  sufficient  fence.  In 
such  case,  it  is  declared,  there  is  no  necessity  of  applying  to  the 
fence-viewers  for  a  certificate  and  assessment  of  damages  ( Wells 
V.  Beal,  9  Kansas  i?.,  597). 

In  the  State  of  Nebraska,  adjoining  occupants  or  owners  of 
land  are  required,  each,  to  maintain  a  just  proportion  of  the 
division  fence  between  them,  except  the  owner  of  either  of  the 
adjoining  lands  chooses  to  let  his  lands  lie  open  ;  in  which  case,  if 
lie  afterward  inclose  his  lands,  he  is  required  to  pay  to  the  adjoin- 
ing owner,  if  his  lands  are  inclosed,  a  just  proportion  of  the  value 
of  the  division  fence,  or  he  must  immediately  build  his  propor- 
tion of  such  division  fence;  all  which  matters  may  be  determined 
by  any  two  fence-viewers  of  the  precinct.  And  all  disputes  aris- 
ing between  owners  of  adjoining  lands  are  to  be  settled  by  the 
fence-viewers  of  the  county,  who  are  required  in  such  case  to  dis- 
tinctly mark  and  define  the  proportion  of  the  fence  to  be  made  or 
maintained  by  each.  The  decision  of  the  fence-viewers  must  be 
reduced  to  writing  and  filed  in  the  office  of  the  county  clerk. 

If  any  person  liable  to  contribute  to  the  erection  or  reparation 
of  a  division  fence,  shall  neglect  or  refuse,  for  the  space  of  four 
weeks  after  notice  in  writing  so  to  do,  to  make  and  maintain  his 
proportion  of  such  fence,  the  party  injured  may  make  or  repair 
the  sam«  at  the  expense  of  the  delinquent  party,  to  be  recovered 
by  him  with  costs  of  suit;  and  such  delinquent  is  also  made  liable 
to  the  party  injured  for  all  damages  which  shall  accrue  b}'  such 
delinquency,  to  be  determined  by  any  two  fence-viewers  selected 
by  the  parties  as  in  other  cases  of  dispute. 

Any  person  disposed  to  do  so,  may  remove  his  portion  of  any 
division  fence,  at  any  time  between  the  first  day  of  December  and 
April,  by  giving  the  adjoining  owner  sixty  days'  previous  notice 
of  his   intention  to   do"  so.     But  if  he  shall  remove  such  fence 


480  ^^^   OF  FENCES. 

•without  giving  tlie  notice,  he  is  made  liable  to  the  adjoining 
owner  for  any  damage  he  may  sustain  by  reason  thereof. 

"Whenever  a  division  fence  shall  be  destroyed  by  lire,  floods  or 
other  casualty,  the  same  must  be  rebuilt  by  the  parties  bound  to 
do  so,  within  ten  da^'s  after  being  notified  in  writing  so  to  do  by 
the  adverse  party ;  and  if  he  neglects  to  build  the  same  as  required, 
the  party  injured  may  do  so  at  the  expense  of  the  delinquent 
party,  to  be  recovered  with  cost  of  suit.  Fence-viewers  may 
examine  witnesses  on  all  questions  submitted  to  them.  In  all 
organized  counties,  justices  of  the  peace  are  ex  officio  fence-viewers 
of  the  county. 

Structures  used  to  inclose  lands  are  deemed  lawful  fences  by  the 
statute  of  j^ebraska  in  the  following  cases  :  A  rail  fence  consist- 
ing of  six  rails,  secured  by  stakes  at  the  end  of  each  panel,  well 
set  in  the  ground,  with  a  rider  upon  the  stakes ;  a  board  fence, 
consisting  of  not  less  than  three  boards  of  at  least  five  inches  in 
width  and  one  inch  thick,  well  secured  to  posts  not  more  tlian 
eight  feet  apart ;  a  rail  and  post  fence  consisting  of  three  rails, 
well  secured  at  each  end  to  posts,  not  more  than  seven  feet  apart; 
a  wire  fence  consisting  of  four  wires  of  number  nine  fencing  wire 
secured  to  posts  not  over  one  rod  apart,  with  a  stake  between  each 
two  posts  to  which  the  wire  shall  be  attached  ;  such  fences  all 
being  five  and  one-half  feet  in  height,  in  their  construction,  the 
spaces  between  the  boards,  etc.,  must  not  be  more  than  one  foot ; 
a  hedge  fence  of  osage  orange  consisting  of  one  row  of  plants 
eight  inches  apart  at  the  surface  of  the  ground;  a  hedge  fence  of 
willow  or  other  trees  consisting  of  one  row  standing  not  more  than 
fifteen  inches  apart  at  the  surface  of  the  ground,  and  two  and  one- 
half  inches  in  diameter  and  six  feet  in  height;  and  a  fence  known 
as  "  "Warner's  Patent,"  four  and  a  half  feet  high,  consisting  of  five 
boards,  five  inches  wide,  and  one  inch  thick.  The  owner  of 
domestic  animals  trespassing  upon  lands  inclosed  by  a  lawful  fence 
is  liable  for  the  damages.  And  if  any  person  sow  grain,  or  plant 
a  crop,  without  iiiclosing  the  same  with  a  sufficient  fence,  he  is 
made  liable  for  all  damages  in  consequence  thereof,  except  in  those 
counties  where  animals  are  restrained  from  running  at  large  by 
legislative  enactment  {Gen.  Stat.  o/*1873,  ch.  2,  §§  18-38).* 

*  A  correspondent  of  the  Chicago  Times,  writing  from  Nebraska  City,  under 
tlate  of  November  18th,  1873,  affirms  that  iu  Nebraslia,  under  the  general  law  of 
the   State,  they  fence  cattle  in,  rather  than  out,  and   that   they  are  not  "con 


STATUTES   OF  NEV.    RESPECTING   FENCES.  481 

Kailroad  corporations  are  required  to  fence  their  roads  by  the 
Nebraska  statutes,  and  for  their  neglect  to  do  so,  are  made  liable 
for  all  damage  {Gen.  Stat.,  ch.  2,  §  145).  And  the  statute  makes 
it  a  criminal  offense  to  injure  or  destroy  any  fence  inclosiire  {Geti. 
Stat.,  ch.  58,  §  103). 

By  the  statutes  of  Nevada,  if  any  horse,  mule,  jack,  jenny,  hog, 
sheep,  goat,  or  any  head  of  neat-cattle,  shall  break  into  any 
grounds  inclosed  by  a  lawful  fence,  the  owner  or  manager  of  such 
animal  is  made  liable  to  the  owner  of  the  premises  for  the  actual 
damage,  and  for  a  second  or  subsequent  offiense  for  double  dama- 
ges. But  no  person  is  justified  in  injuring  any  trespassing 
animals,  but  the  owner  of  lands  on  which  animals  may  be  founds 
trespassing  may  take  such  animals  up  and  keep  them  at  the' 
expense  of  the  owner,  atYer  due  notice,  as  provided  by  the  act,. 
and  have  the  same  disposed  of  to  pay  the  damages  and  expenses. 

Where  two  or  more  persons  shall  cultivate  lands  under  one 
inclosure,  neither  of  them  can  lawfully  place  or  cause  to  be  placed 
any  animal  on  his  or  her  ground,  to  the  injury  or  damage  of  the 
other  party,  under  penalty  of  paying  actual  damage  for  the  iirst 
offense,  and  for  every  subsequent  repetition,  double  damages,  to 
be  recovered  in  any  court  having  jurisdiction  (2  Compiled  Laws 
of  1873,  pages  459,  460).  These  seem  to  be  the  only  provisions 
of  the  statutes  of  Nevada  upon  the  subject  of  fences,  found  by 
reference  to  the  alphabetical  index  of  the  compiled  laws  of  the 
State,  from  which  it  would  seem,  that  no  person  is  peremptorily 

strained  by  law  to  make  fences,"  around  their  cultivated  lands*  On  the  con- 
trary, he  declares  that  "  every  owner  of  live  stock  is  required  by  the  statute  to 
keep  his  animals  'herded' by  day  and  'corralled'  or  penned  up  at  night." 
This  he  regards,  in  a  prairie  State,  as  of  vast  advantage,  and  he  says  that  it  is 
satisfactory  to  the  people  resident  there,  and  "attractive  to  those  seeking  new 
homes,  because  it  directly  spares  them  an  unprofitable,  unproductive  outlay  of 
monej'."  This  policy  may  prevail  in  those  counties  where  "animals  are 
restrained  from  running  at  large  by  legislative  enactment ; "  but  by  the  general 
law  of  the  State,  it  would  seem  that  any  person  sowing  or  planting  a  field  with- 
out inclosing  it  with  a  lawful  fence,  is  liable  for  the  consequences  resulting  from 
his  neglect  so  to  fence.  In  this  case,  therefore,  the  person,  sowing  or  planting 
liis  field  is  essentially  "  constrained  by  law  "  to  build  a  fence  around  his  culti- 
vated land.  Doubtless,  it  would  be  a  great  saving  to  agriculturists  in  the 
country,  if  the  fencing  system  could  be  abolished,  unless  an  equal  outlay  was 
incurred  in  some  other  way.  Whether  it  would  be  cheaper  in  the  end  for 
iarmers  to  keep  their  animals  "herded  "  by  day  and  "  corralled  "  at  night,  thaw 
lo  fence  the  cattle  out  of  their  cultivated  fields,  may  be  a  question. 

61 


482  LAW  OF  FENCES. 

required  to  maintain  fences  about  liis  lands,  but  if  parties  neglect 
to  maintain  partition  fences,  they  must  take  care  of  their  stock, 
an'i  infererdiaUy,  it  would  seem  that  no  person  could  recover 
damage  for  cattle  trespassing  upon  lands  not  inclosed.  The  stat- 
ute speaks  of  a  "lawful  fence,"  but  it  does  not  appear  to  define 
what  shall  be  deemed  such. 

In  tlie  State  of  Oregon,  any  person  who  shall  willfully  break 
down  or  destroy  any  fence  or  hedge  not  his  own,  or  inclosing  land 
not  liis  own,  upon  conviction  thereof,  is  liable  to  be  imprisoned 
in  the  county  jail,  not  less  than  three  months,  nor  more  than  one 
year,  or  by  a  fine  not  less  tlian  ten  dollars,  nor  more  than  $500 
{Gen.  Laws,  Criminal  Code,  cA.  44,  §570).  And  in  case  fence 
rails  shall  be  removed  by  high  water  and  lodged  upon  the  lands 
of  another,  the  owner  of  such  rails  may  proceed  and  take  them 
away,  unless  the  proprietor  of  the  land  where  they  are  thus 
lodged  refuse  his  consent  to  his  removing  them,  in  which  case,  the 
right  to  such  rails  may  be  settled  by  arbitration  {Gen.  Laws,  ch. 
16,  tit.  4).  There  are  no  other  provisions  respecting  fences  in  the 
State  of  Oregon  to  be  found  by  reference  to  the  alphabetical  index 
to  the  compiled  laws  of  the  State,  and  if  there  are  none,  the  com- 
mon law  upon  the  subject,  will  doubtless  be  regarded  as  in  force 
there. 

In  the  State  of  California,  every  inclosure  is  deemed  a  lawful 
fence,  which  is  four  and  a  half  feet  high,  if  made  of  stone ;  and 
if  made  of  rails,  five  and  a  half  feet  high ;  if  made  upon  the 
embankment  of  a  ditch  three  feet  high  from  the  bottom  of  the 
ditch,  the  fence  must  be  two  feet  high ;  said  fence  to  be  substan- 
tial and  reasonably  strong,  and  made  so  close  that  stock  cannot 
get  their  heads  through  it,  and  if  made  to  turn  small  stock,  suffi- 
ciently tight  to  keep  such  stock  out.  A  hedge  is  considered  a 
lawful  fence  if  five  feet  high  and  sufficiently  close  to  turn  stock. 
If  any  horses,  mules,  jacks,  jennies,  hogs,  sheep,  goats,  or  any 
head  of  neat-cattle  shall  break  into  any  grounds  inclosed  by  a 
lawful  fence,  the  owners  of  such  animals  are  made  liable  to  the 
owner  ©f  said  premises  for  all  damages,  and  if  the  trespass  is 
repeated  by  neglect  of  the  owners,  for  the  second  offense,  they  are 
iliable  to  pay  double  damages.  Damage  done  to  animals  upon 
lands  uninclosed  with  a  legal  fence  by  the  owner,  the  person 
doing  the  same  is  made  liable  for. 

Lawful  fences  in  the  State  are  described  as  follows  :  "Wire  fence 


STATUTES   OF  CAL.    EESPECTIXG   FENCES.  483 

made  with  posts,  not  less  than  twelve  inches  in  circumference,  set 
in  the  ground  not  less  than  eighteen  inches,  and  not  more  than 
eight  feet  apart,  with  not  less  than  three  horizontal  wires,  each 
one-fonrth  of  an  inch  in  diameter,  the  first  eighteen  inches  from 
the  ground,  the  other  two  above  this  one,  at  intervals  of  one  foot 
between  each,  all  well  stretched  and  securely  fastened  from  one 
post  to  the  other,  with  one  rail,  slat,  pole  or  plank  of  suitable 
size  and  strength,  securely  fastened  to  the  post  not  less  than  four 
and  a  half  feet  from  the  ground.  Post  and  rail  fence  made  of 
posts  of  the  same  size  and  at  the  same  distance  apart,  and  the  same 
depth  in  the  ground  as  above,  with  three  rails,  slats  or  planks  of 
suitable  size  and  strength,  the  top  one  to  be  four  feet  and  a  half 
from  the  ground,  the  other  two  at  equal  distances  between  the 
first  and  the  ground  and  securely  fastened  to  the  post ;  a  picket 
fence  of  the  same  height  as  the  others,  made  of  pickets,  each  not 
less  tlian  six  inches  in  circumference,  not  more  than  six  inches 
apart,  driven  in  the  ground  not  less  than  ten  inches,  all  well 
secured  at  the  top  by  slats  or  caps.  Ditch  and  pole  fence  must 
be  made  of  a  ditch  not  less  than  four  feet  wide  on  top,  and  three 
feet  deep,  embankment  thrown  upon  the  inside  of  the  ditch,  with 
substantial  posts  set  in  the  embankment  not  more  than  eight  feet 
apart,  and  a  plank,  pole,  rail  or  slat  securely  f\istened  to  said  posts, 
at  least  five  feet  high  from  the  bottom  of  the  ditch.  Pole  fence 
four  and  a  half  feet  high,  with  stakes  not  less  than  three  inches  in 
diameter,  set  in  the  ground  not  less  than  eighteen  inches,  and 
where  the  stakes  are  placed  seven  feet  apart,  there  must  be  not 
less  than  six  horizontal  poles  well  secured  to  the  stakes ;  if  the 
stakes  are  six  feet  apart,  five  poles  ;  if  three  or  four  feet,  four 
poles ;  if  two  feet  apart,  three  poles,  and  the  stakes  need  not  be 
less  than  two  inches  in  diameter,  if  one  foot  apart,  one  pole,  and 
stakes  need  not  be  more  than  two  inches  in  diameter,  so  long  as 
the  stakes  and  poles  are  securely  fastened  and  in  a  fair  state  of 
preservation.  Hedge  fence  is  deemed  lawful  where,  by  reliable 
evidence,  it  is  proved  equal  in  strength,  and  as  well  suited  to  the 
protection  of  inclosed  lands  as  the  other  fences  described.  A 
brush  fence  four  and  a  half  feet  high,  and  twelve  inches  wide,  with 
stakes  not  less  than  two  inches  in  diameter,  set  in  the  ground  not 
less  than  eighteen  inches,  one  on  each  side,  every  third  foot  tied 
together  at  the  top,  with  one  horizontal  pole  tied  to  the  outside 
stake  five  feet  from  the  ground.     And  any  other  fence  which  by 


484  ^^^^  ^^  FENCES. 

reliable  evidence,  shall  be  declared  as  strong,  substantial,  and  as 
well  suited  to  the  protection  of  inclosures  as  the  other  fences 
named,  is  declared  lawful,  except  in  the  counties  of  Sorrena, 
Nepa,  El  Dorado,  Yuba,  and  Maria,  in  which  counties  the  law 
varies  the  kinds  of  fences  a  little,  and  also  allows  a  worm  fence  of 
certain  make. 

Where  a  fence  has  been  erected  by  any  person  on  the  line  of 
his  land,  and  the  opposite  owner  shall  make  an  inclosure,  so  that 
such  fence  shall  answer  for  both  grounds,  the  latter  is  required  to 
pay  for  one-half  the  fence  erected,  as  aforesaid.  Partition  fences 
are  to  be  erected  by  the  parties  equally,  and  to  be  placed  on  the 
line  of  the  lands  as  near  as  practicable,  and  if  one  party  refuses  or 
neglects  to  build  his  share,  provision  is  made  for  the  other  party 
to  build  the  whole  and  recover  half  the  value  of  the  same  of  the 
other,  but  no  such  fences  are  necessary  except  the  lands  are 
inclosed.  Certain  counties  of  the  State  are  excepted  out  of  this 
provision  of  the  statute.  Where  necessary  such  partition  fences 
must  be  maintained  throughout  the  year.  If  the  fence  gets  out 
of  repair,  and  the  proper  party  neglects  to  repair  it,  the  other 
party  may  give  the  notice  specified  in  the  statute,  and  repair  the 
same  and  recover  the  value  of  the  delinquent  party.  There  are 
statutes  of  a  special  character  affecting  certain  specified  counties, 
varying  the  rules  binding  in  other  parts  of  the  State,  which  need 
not  be  referred  to  here  (1  Gen.  Laws  of  1864,  §§  3029-3062). 

Another  provision  of  the  statute  makes  a  fence  constructed  of 
posts  of  a  reasonable  size  and  strength,  firmly  set  in  the  ground, 
not  more  than  twelve  feet  apart,  if  a  rail  or  picket  fence,  and  not 
more  than  eight  feet  apart,  if  a  plank  fence,  the  rails  or  plank  of 
reasonable  size  and  strength,  securely  fastened  to  the  posts  to  the 
height  of  four  and  a  half  feet  and  reasonably  close  ;  if  a  picket 
fence,  the  pickets  of  ordinary  size  and  strength,  strongly  nailed  to 
a  rail  above  and  one  below,  or  driven  into  the  ground  and  nailed 
to  a  rail  above  reasonably  close,  and  four  and  a  half  feet  high ;  if 
a  ditch,  the  ditch  three  and  a  half  feet  wide  at  the  top  and  three 
feet  deep,  the  embankment  being  on  one  side  of  the  inclosure, 
with  a  rail,  plank  or  picket  fence  on  the  embankment,  to  the 
height  of  three  feet ;  or  any  other  kind  of  fence  equivalent  in 
height,  quality  and  strength,  a  lawful  fence;  and  owners  of  ani- 
mals trespassing  on  lands  inclosed  with  a  lawful  fence  are  liable 
for  the  damages  (1  Ge7i.  Laws,  §§  3047,  3048).     And  by  another 


STATUTES   OF  CAL.   RESPECTING   FENCES.  485 

act,  any  person  willfully  or  maliciously  tearing  down  fences  to 
make  a  passage  tlirougli  an  inclosure  is  liable  to  be  indicted  for  a 
misdemeanor,  and  punishable  by  a  tine  not  less  than  fifty  dollars 
nor  more  than  §500  {Laws  of  1871-2,  ch.  280,  §  2). 

The  Supreme  Court  of  the  State  has  held  that  a  person  cannot 
lecover  for  injuries  done  by  another's  cattle  breaking  into  his 
close,  unless  such  close  be  inclosed  by  a  fence  such  as  is  prescribed 
by  statute,  or  at  least  by  one  equivalent  thereto,  in  its  capacity  to 
exclude  them  iComerford  v.  Dupuy,  17  Cal.  i?.,  308).  And  the 
same  court  has  more  recently  held,  that  the  California  acts  {Stat- 
ute of  1861,  523,  and  of  1867-8,  426)  restricting  the  herding 
of  sheep,  were  not  intended  to  prohibit  the  free,  voluntary  ranging 
at  large  of  sheep  over  and  upon  uninclosed  public  or  private  lands. 
That  they  were  intended  to  prohibit  persons,  owning  or  having 
the  charge  of  sheep,  from  driving  them  to  and  collecting  them 
upon  the  uninclosed  lands  of  another.  Where  sheep,  without  the 
knowledge  of  the  owner,  stray  into  uninclosed  fields,  the  owner  is 
held  not  to  be  liable  for  the  injury  done  by  them  {Logan  v.  Ged- 
ney,  38  Cal.  R.,  579). 

In  i-espect  to  the  obligation  of  railroad  corporations  to  fence 
their  roads  in  California,  the  Supreme  Court  of  the  State  has 
recently  declared  that,  where  an  unfenced  line  of  railroad  passes 
through  a  field,  in  which  the  live  stock  of  the  owner  or  occupier 
of  the  field  are  running,  and  such  stock  stray  upon  the  road  and 
are  killed,  ^fim<z/«c^d,  the  company  is  liable  for  the  damage  by 
reason  of  negligence.  And  it  was  held  that  a  railroad  company 
which  continues  running  its  cars  upon  an  open  track,  undertakes, 
at  its  peril,  that  no  harm  shall  come  to  the  t^tock  running  in  the 
field  through  which  the  road  runs,  for  the  want  of  a  proper  fence 
{McCoy  V.  California,  etc.  Railroad  Company,  40  Cal.  R.,  532). 
And  the  same  court  has  also  held,  that  the  act  of  1861,  requiring 
railroad  companies  in  California  to  make  and  maintain  a  good  and 
sufficient  fence  on  both  sides  of  its  property,  not  prescribing  any 
standard  of  sufficiency ,  must  be  considered  as  ado)iting  the 
standard  established  by  the  act  of  1855  ;  that  the  provisions  of  a 
statute  requiring  a  railroad  company  to  maintain  fences  on  the 
sides  of  its  track  is  a  provision  designed  for  the  protection  of 
adjoining  owners,  and  that  such  provision  may  be  waived  by  the 
latter,  and  thus  exonerate  the  company  from  liability  for  injuries 
resulting  to  cattle  in  consequence  of  the  fence  not  being  such  as  is 


486  LAW   OF  FENCES. 

required  by  the  statute  {Enright  v.  The  San  Francisco,  etc.  Rail- 
Compa/ny,  33  Cal.  E.,  230). 


CHAPTER  XLI. 

STATUTES    OF   THE    SEVERAL    STATES    EESPECTING    FENCES LAWS   OF 

NORTH    CAROLINA,  SOUTH    CAROLINA,    GEORGIA,    FLORIDA    AND   ALA- 
BAMA  STATUTES  AND  DECISIONS  OF  THE  COURTS  UPON  THE  SUBJECT. 

In  the  State  of  North  Carolina,  there  seems  to  be  a  general 
statute  requiring  every  planter  to  make  a  sufficient  fence  about 
liis  cleared  ground,  under  cultivation,  at  least  five  feet  high,  unless 
where  there  shall  be  some  navigable  stream  or  deep  water-course 
that  shall  be  sufficient,  instead  of  such  fence,  and  prescribing 
rules  and  remedies  in  case  of  damage,  by  reason  of  insufiicient 
fences  {Revised  Code,  ch.  48).  And  there  are  local  statutes  mak- 
ino-  certain  rivers  and  streams  lawful  fences,  and  empowering  the 
county  commissioners  in  specified  cases  to  make  other  rivers  and 
streams  lawful  fences  {Laws  of  1873,  ch.  98).  And  in  other  cases 
there  are  statutes  providing  that  the  qualified  voters  of  certain 
localities  may  determine  whether  or  not  they  will  be  under  the 
fence  laws  of  the  State,  and  if  they  decide  for  "  no  fence,"  then 
tlie  fence  laws  cease  to  be  in  force  within  the  limits  of  such  locali- 
ties, and  the  owners  must  take  care  of  their  stock  at  their  peril 
{Laws  0/1871,  ch.  187;  and  vide  Laws  o/1873,  ch.  193).  The 
general  rule,  however,  in  the  State  is,  that  where  tAvo  or  more 
persons  shall  have  lands  adjoining,  which  shall  be  either  cultivated 
or  as  a  pasture  for  stock  by  the  respective  owners  of  each  piece  of 
land,  each  shall  make  and  maintain  the  one-half  of  the  fence 
upon  the  dividing  line  ;  and  rules  are  prescribed  for  cases  where 
one  owner  chooses  to  neither  cultivate  his  land,  nor  to  pasture  the 
same,  nor  to  permit  his  stock  to  run  on  it,  but  afterward  con- 
cludes to  do  one  or  the  other,  is  allowed  to  do  so  on  payment  of 
a  portion  of  the  value  of  the  line  fence  {Laws  o/lS69,  ch.  275). 
The  foregoing  are  substantially  the  provisions  of  the  statutes  of 
North  Carolina  now  in  force  upon  the  subject  of  fences  in  the 
State,  excepting  the  statutes  forbidding  the  removal  of  fences 
under  certain  circumstances,  and  making  it  an  indictable  offense 


STATUTES   OF  K.    C.    RESPECTING    FENCES.  487 

to  do  SO,  and  the  like  (  Vide  Laws  of  1817,  ch.  70 ;  Bev.  Code^  ch. 
34,  §  103). 

A  ease  of  considerable  interest  lately  came  before  the  Supreme 
Court  of  North  Carolina  in  respect  to  fences,  although  not  invol- 
ving any  particular  principle  under  the  laws  of  the  State  upon 
that  subject.  The  case  was  this :  Adjacent  landowners  agreed  to 
build  a  rail  fence  on  their  line  ;  Whitfield,  the  plaintiff,  the  eastern 
half,  and  Bodenhamnier,  the  defendant,  the  western.  Tiie  defend- 
ant, inadvertently,  or  to  get  a  better  location,  placed  a  part  oi  his 
altogether  on  the  plaintiff 's  land.  Afterward  he  gave  the  plain- 
tiff a  notice  in  writing  that  he  intended  on  a  certain  day  to  have 
liis  land  surveyed,  and  to  set  his  fence  on  his  own  land,  and  that 
the  plaintiff  might  attend  and  see  it  done.  The  surveyor  nut 
coming  on  that  day,  another  day  was  set  but  before  it  arrived,  the 
defendant  removed  his  fence ;  on  the  appointed  day  the  parties 
made  the  survey.  The  court  held  that  the  plaintiff  could  not 
maintain  trespass  quare  clattsum  f regit  for  such  removal ;  and  that 
there  was  no  showing  of  a  license  from  the  plaintiff  for  the 
removal  of  the  fence  (  Whitfield  v.  Bodenhammer^  Phillips^  Law 
B.,  362). 

The  courts  of  the  State  have  held  that  the  phrase  "  cleared 
ground  under  cultivation,"  employed  in  the  North  Carolina 
Revised  Code,  chapter  48,  section  1,  requiring  a  fence  five  feet 
high  around  such  ground,  does  not  embrace  "  pasture  field,"  and 
it  was  said  in  the  case,  tliat  the  provisions  protecting  pastures, 
whether  cleared  or  uncleared,  are  found  in  section  133  of  chapter 
34  of  the  Code  {The  State  v.  Perry,  64  W.  G.  A\,  305).  But  it 
has  been  held,  that  a  planter,  who  lias  not  a  fence,  as  required  by 
law,  about  his  cultivated  field,  nor  any  navigable  or  deep  water  to 
serve  instead  thereof,  is  not  entitled  to  recover  for  a  trespass  com- 
mitted by  domestic  animals  on  a  field  thus  unprotected  {Jones  v. 
Wither  spoon,  7  Jones'  Law  R.,  555).  It  seems  that  the  report  of 
the  freeholders  in  a  proceeding  under  the  statute  concerning 
fences,  contained  in  the  Revised  Code  of  North  Carolina,  chapter 
48,  section  3,  should  embrace  only  damages  for  the  particular 
injury  complained  of  in  the  warrant,  and  tlie  judgment  of  the 
magistrate  sliould  be  for  such  damages  only  {Bailey  v.  Bryan,  3 
Jones^  Lav)  P.,  357).  And  it  was  held  that,  under  the  act  of 
1777,  regulating  the  proceedings  for  damages  by  the  inroads  of 
cattle  and  other  animals,  the  report  of  the  justices  and  freeholders 


488  .  ^^^^  OF  FENCES. 

on  the  state  of  the  pkintiflE's  fences  is  conclusive  on  the  parties 
{Nelson  v.  Stewart^  2  MurjyJiei/'s  M.,  298).  Where  hogs  escape 
into  the  grounds  of  tenants  in  common  throuf^h  the  insufficiency 
of  their  fences,  and  are  killed  or  mained  by  them  or  a  part  of 
them,  it  has  been  held  that  the  actual  perpretrators  of  the  acts  are 
individually  liable  even  under  the  North  Carolina  statute  of  1831, 
contained  in  chapter  48  of  the  Revised  Statutes  {McKay  v. 
Woodle,  6  Ired.  B.,  352). 

It  has  been  held  that  one  who  removes  a  fence  from  his  own 
land,  unlawfully  put  there  by  another,  although  it  partially 
inclosed  a  cultivated  field  of  the  latter,  is  not  indictable  under 
chapter  34,  section  103,  of  the  Revised  Code  {The  State  v.  Head- 
rick,  3  Jones'  Law  R.,  375).  And  it  has  also  been  held  that  the 
act  which  forbids  the  removal  of  fences,  etc.,  does  not  extend  to 
persons  in  the  rightful  possession  of  the  premises,  as  quasi  tenants, 
occupying  the  same  by  the  consent  of  the  owner  {The  State  v. 
WilUams,  Busbeis  Law  R.,  197).  But  it  has  been  held  that  a 
person  may  be  convicted  on  an  indictment  under  the  statute,  if  it 
appear  that  the  ground,  which  the  fence  surrounded,  was  in  a 
course  of  jireparation  for  making  a  crop,  or  used  in  the  course  of 
husbandry,  though  no  crop  was  actually  planted  or  growing  on  it 
at  the  time  of  such  remov^al  {The  State  v.  Allen,  13  Lred.  Li.,  36). 
It  was  held  that  all  persons,  and  not  planters  only,  are  subject  to 
indictment  for  not  keeping  up  good  fences,  as  required  by  the 
tliirty-fourtli  and  thirty-eighth  chapters  of  the  Revised  Statutes  of 
the  State  {The  State  v.  Bell,  3  Lred.  R.,  506). 

AVhere  a  person  has  neither  possession  of  land,  nor  the  right  of 
possession  to  it,  upon  an  indictment  for  unlawfully  removing  a 
fence  therefrom,  he  cannot  raise  a  question  as  to  his  right  of  entry, 
or  defend  by  showing  that  he  did  the  act  to  bring  on  a  civil  suit 
to  try  title  {The  State  v.  Graham,  8  Jones^  Laio  R.,  397).  And 
it  has  been  held  that,  where  a  person  was  indicted  for  having  an 
insufficient  fence  during  crop  time  in  North  Carolina,  the  suffi- 
ciency of  a  pond  or  water-course  to  answer  the  purpose  of  a  fence 
was  a  question  for  the  court,  and  where  it  appeared  that  a  water- 
course had  been  passed  over  by  hogs  and  other  stock,  the  opinion 
of  the  court  below,  that  the  same  was  insufficient  as  a  fence,  was 
sustained  {The  State  v.  Lamb,  8  Lred.  R.,  229). 

The  Supreme  Court  has  decided  that  it  is  not  the  duty  of  the 
owners  of  cattle  in  North  Carolina,  to  keep  them  within  inclo- 


STATUTES   OF  S.    C.    EESPECTmG  FENCES.  489 

surcs,  so  as  to  prevent  tlietn  from  trespassing  upon  the  lands  of 
others  {Laws  v.  The  NortJi  Carolina  Railroad  Company^  7 
Jones'  Law  12.,  4GS).  And  it  is  held  that  railroad  companies  are 
liable  for  the  damage  done  to  cattle  feedino-  near,  and  crossing 
their  roads,  except  they  use  due  care  to  prevent  the  accident 
{Af/cock  V.  Railroad  Company,  6  Jones'  Law  R.,  231 ;  but  vide 
Montgomery  v.  The  Wilviington,  etc.  Railroad  Company,  Ih., 
404). 

By  the  statutes  of  South  Carolina,  all  fences  strongly  and 
closely  made  of  rails,  boards,  or  posts  and  rails,  or  of  an  cmbank- 
»ient  of  earth  capped  with  i-ails  or  timber  of  any  sort,  or  live 
hedges,  five  feet  in  height,  measured  from  the  level,  are  deemed 
lawful  fences.  And  ever}'  planter  is  bound  to  keep  such  lawful 
fences  around  his  cultivated  grounds,  except  where  some  naviga- 
ble stream  or  deep  water-course  shall  be  a  boundary  of  such  culti- 
vated grounds,  in  which  case,  such  stream  is  deemed  a  sufficient 
fence.  Provided,  that  before  one  can  avail  himself  of  this  latter 
regulation,  he  shall  apply  to  a  magistrate  of  the  district  or  parish, 
who  is  required,  from  the  names  of  seven  freeholders  of  the  vicin- 
age, to  draw  by  lot,  three,  who  must  view  the  premises,  and  pro- 
nounce upon  the  sufficiency  of  the  said  water  as  an  inclosure, 
according  to  the  true  intent  of  the  act. 

Horses,  mules,  cattle,  hogs,  sheep  or  goats,  breaking  into  any 
field,  having  a  crop  of  any  kind  growing  or  ungathered,  with  a 
lawful  fence,  may  be  seized  and  kept  confined  until  notice  is  given 
to  the  owner,  within  twenty-four  hours  of  the  seizure,  who  shall 
be  bound  to  pay  the  owner  of  such  field,  fifty  cents  a  head  for  each 
horse  or  mule,  and  twenty-five  cents  per  head  for  every  head  of 
cattle,  hogs,  etc.,  before  he  shall  be  entitled  to  have  such  animal 
delivered  up  to  him.  And  for  the  second  breaking,  within  one 
month  after  the  first,  the  owner  is  made  liable  to  the  person 
injured,  for  all  damages  sustained,  in  addition  to  the  fine  afore- 
said, to  be  recovered  by  action  of  trespass,  in  which  case  the  plain- 
tiff* will  be  entitled  to  his  full  costs,  if  the  verdict  or  decree  shall 
exceed  four  dollars.  But  the  verdict  is  required  to  be  for  the 
defendant  if  it  shall  appear  that  the  fence  was  not  a  lawful  one. 
And  where  an)-  person  whose  fields  are  not  inclosed  by  a  lawful 
fence  shall  kill  or  otherwise  injure  animals  found  in  such  unin- 
closed  field,  he  is  made  subject  to  an  action  of  trespass  in  favor  of 
the  owner  of  the  aiiinuds,  and  the  plaintifi'  in  the  action  may 
62 


490  i^TF   OF  FENCES. 

recover  full  satisfaction  for  the  injury,  with  costs,  if  the  verdict 
exceed  four  dollars  (6  Stat,  at  Zar(/e,  Wo.  2430). 

Planters  and  others  having  corn  or  other  provision  fields  are 
required  to  maintain  a  fence  around  such  fields  six  feet  high,  and 
no  person  is  permitted  to  have  canes  or  stalks  in  any  of  his  inclo- 
sures,  that  may  injure  liorses  or  cattle  under  the  penalty  of  the 
sum  of  forty  shillings  for  every  fault.  If  any  horse  or  neat  beast 
or  cattle  shall  bi'eak  through  a  sufficient  fence  or  be  found  in  an 
inclosure  with  a  sufficient  fence,  the  owner  of  the  inclosure  may 
apply  to  a  justice  of  the  peace  before  whom  proceedings  may  be 
had  for  the  appraisement  of  the  damage ;  and  for  the  second 
fanlt  of  such  beast  in  the  same  inclosure,  the  said  justice  is  required 
to  give  execution  double  what  tke  damages  shall  be  appraised  at 
(2  Stat,  at  Large,  No.  108). 

In  an  early  case  before  the  South  Carolina  courts,  it  appeared 
that  the  plaintiff"  erected  a  partition  fence  on  the  line  dividing  his 
land  from  that  of  the  adjoining  proprietor,  after  requesting  the 
said  proprietor  to  join  in  the  building  thereof,  which  he  refused 
to  do,  in  the  city  of  Charleston ;  and  afterward,  on  the  refusal  of 
the  owner  of  the  same  land  adjoining  to  pay  any  part  of  the 
expense  thereof,  brought  assumpsit  for  a  contribution,  or  a  moiety 
of  the  expense,  and  gave  in  evidence  a  local  custom  of  the  place, 
entitling  the  builder  of  a  party  wall  or  fence  to  recover  half  the 
expense  of  erecting  the  same,  and  had  a  verdict.  On  appeal,  it 
was  held  by  a  majority  of  the  court  to  be  a  good  custom,  and  the 
verdict  was  sustained  ( ^Yalker  v.  Chichester,  2  Brevard's  II.,  67). 

It  has  been  held  by  the  courts  of  the  State,  that  the  killing  of 
cattle  on  a  railroad  track  by  a  train  of  cars,  is  prima  facie  proof 
of  negligence  on  the  part  of  the  company  {Banner  v.  The  South 
Carolina  Railroad  Company,  4  Rich.  Law  R.,  329).  And  it  has 
been  decided  that  this  rule  applies  to  the  killing  of  a  horse  at 
night:  and  it  was  declared,  that,  according  to  the  laws  of  South 
Carolina,  cattle  should  be  fenced  out,  and  not  fenced  in  ;  that  the 
entry,  therefore,  of  cattle  or  a  horse,  on  an  uninclosed  railroad 
track,  is  no  trespass  {Murray  v.  The  South  Carolina  Railroad 
Company,  10  Rich.  Law.  R.,  227).  But  it  was  held  that  the 
principle  laid  down  in  Banner^s  Case,  supra,  does  not  apply  to 
the  killing  of  a  dog  (  Wilson  v.  The  Wilmington  and  Man.  Rail- 
road Company,  10  Rich.  Law  R.,  52). 

In  the  State  of  Georgia,  the  statute  provides  that  all  fences  or 


STATUTES   OF  GA.    RESPECTIXG   FENCES.  491 

inclosures,  commonly  called  worm  fences,  shall  be  five  feet  high, 
with  or  without  being  staked  and  ridered,  and  from  the  ground  to 
the  height  of  three  feet,  the  rails  must  not  be  more  than  four 
inches  apart,  and  all  paling  fences  must  be  of  the  same  height,  and 
the  i)oles  not  more  than  two  inches  apart.  Any  inclosure,  made 
by  means  of  a  ditch  or  trench,  is  required  to  be  three  feet  wide 
and  two  feet  deep  ;  and  if  made  of  both  fence  and  ditch,  the  latter 
must  be  four  feet  wide,  and  the  fence  live  feet  high  from  the  bot- 
tom of  the  ditch.  If  any  trespass  is  committed  in  any  inclosure, 
not  being  protected  by  such  a  fence,  no  damage  can  be  recovered 
therefor;  and  if  cattle  trespass  upon  lands  lawfully  fenced,  they 
must  not  be  killed  or  injured  for  the  first  breaking  in  of  any  such 
animal,  and  not  until  after  notice  is  given  to  the  owner  or  agent, 
if  possible,  although  the  owner  of  the  animal,  in  such  case,  will 
be  liable  for  double  the  damage  done  by  his  stock. 

All  water-courses  that  are  or  have  been  navigable,  as  for  as  navi- 
gation has  ever  extended  up  said  streams,  are  deemed  fences, 
whenever,  by  reason  of  freshets,  or  otherwise,  fences  cannot  be 
kept  on  such  streams,  subject  to  the  rules  applicable  to  other 
fences. 

No  horse,  mule,  cow  or  hog,  or  any  other  animal  used  or  fit  for 
food  or  labor,  is  permitted  to  run  at  large  beyond  the  limits  of 
the  lands  of  the  owner  or  manager  of  the  same ;  and  for  a  viola- 
tion of  this  provision  of  the  statute,  the  owner  of  the  animal  tres- 
passing is  made  liable  to  make  full  satisfaction  for  the  damage 
{Code  of  1S7Z,  ch.  9,  §§1443-1451).  Provision  is  also  made  for 
impounding  animals  trespassing  and  the  proceedings  in  such  case 
are  pointed  out  by  the  statute  {Code,  ch.  9,  §§  1451-1455).  And 
the  pulling  down  or  removing  any  fence,  paling  or  inclosure  of 
another,  without  the  conseiit  of  the  owner,  is  made  an  indictable 
offense  {Code,  §  4440). 

The  Supreme  Court  of  the  State  has  decided  that,  if  a  party 
kill  stock  that  has  strayed  into  his  uninclosed  river  bottoms  he  is 
liable  therefor  under  a  statute  in  force  in  tlie  State  of  Georgia 
{Cantrell  v.  AlderhoU,  28  Ga.  7?.,  239). 

By  an  act  of  the  legislature  of  Georgia  passed  in  1S47,  it  is 
declared  that  "  the  several  railroad  companies  of  the  State  shall 
be  held  liable  in  law  for  any  damage  done  to  live  stock  or  other 
property  ;"  and  to  escape  this  it  would  seem  to  be  almost  indis- 
pensably necessary  that  the  roads  should  be  substantially  fenced. 


492  LAW   OF  FENCES. 

Notwithstanding  the  unqualified  terms  of  the  statute,  the  Supreme 
Court  of  the  State  has  held,  that  railroad  corporations  are  not  lia- 
ble for  damages  caused  by  design  or  negligence  of  the  owner  of 
the  stock  {Macoti  and  W.  Railroad  v.  Davis,  13  Ga.  R.,  68). 
The  Supreme  Court  has,  since  the  case  in  the  13th  Georgia  was 
decided,  held  that  section  five  -of  the  act  of  IS'IT,  is  repealed  by 
the  statute  of  1854  with  the  same  title  {Jones  v.  Central  Rail- 
road and  Bank,  21  Ga.  R.,  10-1).  And  the  same  court  has 
recently  held,  that  in  actions  against  railroad  companies  for  dama- 
ges to  animals  astray  upon  their  track,  the  burden  of  proof  is  on 
the  plaintiffs  to  show  that  the  defendants  are  chargeable  with  neg- 
ligence {Georgia  Railroad,  etc.  Company  v.  Anderson,  33  Ga.  R.. 
110).  And  it  was  held  in  the  same  case,  that  an  award  of  land 
damages,  showing  that  the  owner  of  the  land  received  compensa- 
tion for  increased  expense  of  fencing,  incurred  by  reason  of  the 
construction  of  the  railroad,  is  competent  evidence  in  defense  of 
an  action  for  killing  his  animals  which  have  strayed  over  the  fence 
upon  the  track  ;  this  evidence,  it  was  observed,  tends  to  show  the 
owner  of  the  animals  liable  for  the  consequences  of  defect  of 
fences  {Georgia  Railroad,  etc.  Company  v.  Anderson,  33  Ga.  R., 
110). 

In  the  State  of  Florida,  all  fences  or  inclosures  commonly  called 
worm,  log,  or  post  and  railing  fences,  erected  and  made  around  or 
about  any  garden,  orchard,  plantation  or  settlement,  must  be  five 
feet  high,  well  staked  or  ridered,  or  otherwise  must  be  five  feet 
liigh,  and  locked  or  braced  at  the  corners,  and  from  the  ground  to 
the  height  of  three  feet,  the  rails  or  logs  must  not  be  more  than 
four  inches  apart,  except  in  case  of  paling,  the  poles  must  not  be 
more  than  two  inches  asunder.  If  the  fence  is  made  with  a  trench 
or  ditch,  the  same  must  be  four  feet  wide,  and  the  fence  five  feet 
high  from  the  bottom  of  the  ditch,  and  three  feet  high  from  the 
top  of  the  bank.  Owners  of  cattle  are  not  liable  for  trespass  on 
lands  not  lawfully  fenced.  No  planter  is  permitted  to  fix  or  cause 
to  be  fixed  in  any  of  his  inclosures,  not  lawfully  fenced,  any  canes 
or  stakes,  or  any  thing  that  may  kill,  maim  or  injure  any  cattle, 
horse,  sheep,  goats  or  swine,  under  penalt)^  of  ten  dollars  for  every 
offense  {Thompson) s  Digest,  ch.  5). 

In  Alabama,  all  inclosures  and  fences  must  be  five  feet  high, 
and  if  made  of  rails,  well  staked  and  ridered,  or  otherwise  sutti- 
ciently  locked,  and  from  the  ground  to  the  height  of  every  thre*i 


STATUTES   OF  ALA.    RESPECTING   FENCES.  493 

feet,  the  rails  not  more  than  four  inches  apart,  and  if  made  of 
palings,  the  palings  not  more  than  three  inches  apart,  or  if  made 
with  a  ditch,  such  ditch  must  be  four  feet  wide  at  the  top,  and  the 
fence  of  whatever  material  composed,  at  least  five  feet  high  from 
the  bottom  of  the  ditch,  and  three  feet  from  the  top  of  the  bank, 
and  so  close  as  to  prevent  stock  of  any  kind  from  getting  through. 
No  damages  can  be  recovered  for  trespasses  of  animals  on  lands 
not  inclosed  with  a  lawful  fence,  and  where  the  land  is  not  thus 
inclosed,  no  person  must  set  in  his  inclosure  any  stakes,  pits, 
poison,  or  any  thing  which  may  injure  or  kill  any  animal  or  stock, 
under  a  penalty  of  fifty  dollars  for  every  such  act,  and  where  such 
stakes,  pits,  poisons,  etc.,  are  found  on  such  inclosures,  they  are 
made  presumptive  evidence  that  they  were  set  by  the  person  in 
charge  of  the  land.  But  if  stock  trespass  on  land  legally 
inclosed,  the  owner  is  liable  for  the  damage,  and  the  statute  pre- 
scribes the  method  of  proceeding  to  have  the  damage  assessed. 
All  partition  fences  between  improved  lands  are  to  be  maintained 
at  the  joint  expense  of  the  occupants.  And  if  any  person  uses  a 
fence  as  a  partition  fence  erected  by  another,  he  is  required  to  pay 
his  proportion  of  the  value  of  the  same,  to  be  ascertained  by- 
three  disinterested  freeholders  of  the  precinct  summoned  by  a 
justice  of  the  peace  as  provided  by  the  statute  {Revised  Code  of 
1867,  tit.  13,  ch.  8). 

The  Supreme  Court  of  Alabama  has  decided,  that  a  partition 
fence  between  adjoining  proprietors  is,  under  the  statute  of  the 
State,  the  joint  property  of  both,  and  that  each  is  bound  to  keep 
the  entire  fence  in  good  repair,  that  one  tenant  cannot  therefore 
maintain  an  action  of  trespass  against  the  other,  for  an  injurj^  con- 
sequent upon  an  insufficient  fence.  But  if  the  fence  is  out  of 
repair,  and  one  of  the  proprietors  will  not  aid  in  repairing  it,  the 
other  may  cause  it  to  be  done,  and  recover  the  value  before  the 
appropriate  tribunal,  although  viewers  have  not  been  appointed 
by  the  county  court.  It  was  also  held  in  the  case  before  the 
court,  that  if  the  proprietors  enter  into  an  agreement,  one  to  keep 
lip  one-half  the  fence,  and  the  other,  the  other  half,  an  action  of 
trespass  cannot  be  maintained  by  one  against  the  other,  for  an 
injur}'  caused  by  an  insufficient  fence,  but  that  the  remedy  is  for  a 
breach  of  the  contract  (  Walker  v.  Watrous^  8  Ala.  H.,  493). 

In  a  much  latter  case  than  Walker  v.  Watrous,  the  same  court 
reiterated  the  doctrine,  that  by  the  common  law,  a  tenant  of  a 


494  LAW  OF  FEXCES. 

close  is  not  bound  to  fence  against  an  adjoining  close,  unless  by 
force  of  prescription  ;  and  that  where  no  prescription  or  agree- 
ment exists,  the  legal  obligation  of  the  tenants  of  adjoining  lands 
to  make  and  maintain  partition  fences,  depends  entirely  npon 
statutory  provisions.  And  it  was  held  that  the  statute  of  Ala- 
bama on  the  subject  of  partition  fences,  does  not  restrict  a  tenant's 
right  to  let  his  own  lands  lie  open  ;  he  being  responsible  in  dam- 
ages for  his  cattle  breaking  into  any  grounds  which  are  inclosed 
with  a  lawful  fence.  It  was  further  declared,  that  the  fact  that 
some  panels  of  the  defendant's  outside  fence  were  down,  though 
not  conclusive  evidence  that  his  lot  was  uninclosed,  is  nevertheless 
evidence  whose  weight  should  be  left  to  the  consideration  of  tlie 
jury  in  ascertaining  that  fact.  It  was  decided,  that  if  the  defend- 
ant's lot  is  in  possession  of  a  trespasser,  or  of  one  claiming  title  in 
himself  or  a  third  person,  the  defendant  is  not  liable  for  the  erec- 
tion or  repairs  of  a  partition  fence  ;  but  if  he  consents,  as  owner, 
to  the  erection  of  the  fence,  and  it  is  made  by  the  adjoining  pro- 
prietor upon  the  consent  thus  given,  he  is  estopped  from  denying 
liis  liability;  and  that  in  an  action  to  recover  one-half  of  the 
expense  of  a  partition  fence,  the  actual  interest  which  the  parties 
have  in  the  fence  is  a  question  which  cannot  arise  {3foore  v. 
Zevert,  24  Ala.  i?.,  310).  And  it  has  been  held  in  a  still  later 
case,  that  the  recognition  of  the  parties,  as  a  partition  fence,  of  a 
structure  which  is  built  entirely  on  the  land  of  one  proprietor, 
operates  as  an  estoppel  m^-^aes,  and  prevents  either  from  com- 
plaining of  any  act  done  by  the  other,  which  would  have  been 
lawful  if  the  fence  had  been  on  the  division  line,  and  that  each 
one  has  a  right  to  enter  on  the  land  of  tlie  other  for  the  purpose 
of  repairing  it.  But  it  was  held,  that  if  a  gate  erected  therein  is 
also  recognized  as  a  part  of  the  partition  fence,  the  right  to  repair 
it  as  a  fence  does  not  authorize  its  destruction  as  a  gate  ;  and  that 
one  entering  for  the  latter  purpose  is  not  protected  by  the  statute 
{Henry  v.  Jones,  28  Ala.  R.,  385). 

It  has  been  held,  that  the  mere  negligence  of  a  servant,  acting 
in  the  ordinary  business  of  the  defendant,  his  master,  will  not 
authorize  a  recovery,  although  the  damage  to  the  plaintiff's  stock 
actually  resulted  from  such  negligence,  and  although  an  action  on 
the  case  at  common  law  would  lie  to  recover  damages  for  such 
injuries.  It  was  declared  that  the  statute  of  the  State  which  gives 
double  damages  for  injuries  to  stock  {Clay's  Dig.  241,  §3),  is 


STATUTES   OF  ALA.    RESPECTIXG   FENCES.  495 

Iiiglily  penal  in  its  character,  and  must  be  strictly  construed  ;  and 
to  authorize  a  recovery  under  the  statute,  it  must  be  shown  that 
the  defendant's  fence  was  insufficient,  and  that  the  injury  to  the 
plaintiif  's  stock  arose  out  of  some  act  of  the  defendant  done  or 
commanded  or  directed  to  be  done  by  him  {Smith  v.  Cansey,  22 
Ala.  B.,  56S). 

It  has  been  held  by  the  Supreme  Court  of  Alabama,  that  the 
act  of  the  legislature  of  the  State  passed  in  1852  {PampJdet  Acts, 
1851,  1852, ^age  45),  "to  regulate  and  define  the  liability  of  rail- 
road companies,"  does  not  conflict  with  the  act  of  1850  {Pam- 
p/ilet  Acts,  1849, 1S50,  j/ctge  171),  granting  the  right  of  way  through 
Jackson  county  to  the  Nashville  and  Chattanooga  Railroad  Com- 
pany, and  it  was  held,  that  to  entitle  the  plaintiff  to  recover  against 
a  railroad  company  under  the  act  of  1852,  it  is  only  necessary  for 
him  to  prove  property  in  the  stock  or  cattle  killed,  their  value, 
and  that  they  were  killed  by  the  defendant's  cars  or  locomotives. 
But  whether  any  degree  of  care  and  diligence  on  the  part  of  the 
defendant  will  excuse  the  act  of  killing  the  stock  or  cattle,  was 
left  in  doubt  by  the  court  under  a  qucBre.  But  it  was  expressly 
declared  that  the  fact  that  the  cattle  were  killed  while  roamino-  on 
the  lands  which  did  not  belong  to  the  owner,  is  no  defense  to  the 
action,  because  the  doctrine  of  the  common  law  in  relation  to 
damage-feasant  has  never  been  adopted  in  the  State  {The  Nash- 
ville and.  Chattanooga  Railroad  Company  v.  Peacoch,  25  Ala. 
IL,  229). 

The  Supreme  Court  of  the  State  has  recently  decided  that, 
under  the  Alabama  Revised  Code,  railroad  companies  are  liable 
for  damages  for  killing  or  injuring  stock  by  their  locomotives  and 
cars  if  they  fail  to  comply  with  the  requirements  of  caution  which 
are  therein  prescribed,  if  such  compliance  is  within  the  power  of 
their  engineers  and  agents.  Where  compliance  with  the  require- 
ments is  not  possible,  the  company  can  escape  liability  only  by 
showing  that  its  agents  or  servants  used  all  the  means  in  their 
power,  under  the  circumstances,  known  to  skillful  engineers,  to 
prevent  the  injury  complained  of  {Mobile,  etc.  Railroad  Company 
v.  Malwie,  46  Ala.  R.,  391). 


496  -^^^  OF  FENCES. 


CHAPTER   XLII. 

STATUTES  OF  THE  SEVERAL  STATES  EESPECTING  FENCES  —  LAWS  OP 
KENTUCKY,  TENNESSEE,  MISSISSIPPI,  LOUISIANA,  ARKANSAS  AND 
TEXAS  —  STATUTES  AND  DECISIONS  OF  THE  COURTS  UPON  THE  SUB- 
JECT. 

In  the  State  of  Kentucky,  every  strong  and  sound  fence  of 
rails  or  plank  or  iron,  five  feet  high,  and  being  so  close  that  cattle 
or  other  stock  cannot  creep  through,  or  made  of  stone  or  brick, 
four  and  one-half  feet  high,  or  a  ditch  three  feet  deep  and  three 
feet  broad,  with  a  hedge  two  feet  high,  or  a  rail,  plank,  stone  or 
brick  fence  two  and  a  half  feet  high  on  the  margin  thereof,  the 
hedge  or  fence  being  so  close  that  cattle  cannot  creep  through,  is 
declared  by  statute  to  be  a  lawful  fence.  If  cattle  trespass  upon 
grounds  inclosed  by  a  lawful  fence,  the  owner  or  manager  of  the 
cattle  is  made  liable,  for  the  first  breach,  to  pay  the  actual  dam- 
age, and  for  every  subsequent  breach,  double  the  actual  damages 
sustained.  And  in  case  of  a  subsequent  trespass  by  the  same  cat- 
tle, after  the  owner  thereof  has  had  five  days'  notice,  in  writing, 
of  the  two  previous  trespasses,  the  owner  of  the  inclosure  may 
kill  the  cattle  and  recover  treble  damages  for  the  third  or  subse- 
quent breach  {Gen.  Stat.  o/'lSTS,  ch.  55,  art.  1). 

As  a  foundation  for  the  legislation  respecting  fences  in  the  State, 
the  Court  of  Appeals  of  Kentucky  have  recently  decided,  that 
the  legislature  of  a  State  has  the  constitutional  power  to  regulate, 
by  statute,  the  relative  rights  and  responsibilities  of  the  proprie- 
tors of  inclosed  land  and  the  owners  of  stock  going  at  large  or 
kept  in  adjacent  inclosures  {Wills  v.  Walters,  5  BusJi's  i?.,  351). 
And  the  same  court,  at  an  earlier  day,  in  giving  a  construction  to 
a  regulation  concerning  fences  in  the  State,  held  that  a  town  ordi- 
nance, providing  that  a  person,  joining  a  division  fence  to  one 
already  put  up,  should  pay  one-half  the  value  of  the  fence  to 
which  he  joins,  does  not  render  an  owner  of  a  lot  liable  for  one- 
half  tlie  value  of  a  fence  put  up  by  the  owner  of  the  adjoining 
lot,  in  place  of  the  old  division  fence  {WMillen  v.  Wilson,  3 
Dana^s  7?.,  154). 

The  Court  of  Appeals  of  Kentucky  have  held,  that  in  an  action 
claiming  double  damages  under  the  statute  against  a  person  for 


STATUTES    OF  KV.    RESPECTIXG    FENCES.  497 

killing  a  horse  which  had  entered  a  field  not  inclosed  by  a  lawful 
fence,  tlie  charge  is  sustained  by  proof  that  the  defendant  used 
and  controlled  tiie  premises,  although  not  the  owner.  And  it  was 
held  in  the  same  case,  that  in  such  an  action  it  was  error  to  instruct 
the  jury  that  the  defendant  was  not  liable  for  damages,  if  he  did 
what  other  prudent  men  might  have  done  {Jones  v.  Hood,  4 
Bush's  7?.,  SO). 

The  statute  of  Kentucky  further  provides  that  where  a  parti- 
tion fence  has  existed  by  agreement  or  acquiescence  between  two 
or  more  persons,  neither  party  can  legally  remove  the  same  with- 
out the  consent  of  the  others,  except  between  the  first  of  Decem- 
ber and  first  of  March  ensuing;  nor  unless  three  months'  notice 
in  Avriting  shall  have  been  previously  given  to  the  opposite  party 
by  the  person  desiring  to  make  the  same.  Wherever  a  partition, 
fence  exists,  each  party  thereto  is  required  to  keep  a  lawful  fence- 
on  his  proportion  of  the  line ;  and  in  case  he  fails  to  do  so  he  is^ 
made  liable  for  all  damages  the  other  party  may  sustain  by  reasom 
of  trespasses  over  such  division  fence;  and  after  a  reasonable 
notice  to  repair  the  same,  the  other  party  may  repair  the  same  at" 
the  expense  of  the  delinquent. 

Persons  owning  adjoining  lands  may  agree  in  regard  to  the 
erection  of  division  fences  between  them,  and  the  keeping,  of  the 
same  in  repair.  And  if  the  cattle  of  the  one  shall  pass  over  or 
through  such  division  fence,  and  go  upon  the  lands  of  the  other,, 
at  any  point  at  which  he  is  bound  to  keep  in  repair,  he  is  made 
responsible  for  the  damage.  If  the  owner  or  bailee  of  cattle  shall 
have  a  lawful  fence,  and  his  cattle  shall  break  through  or  pass  over 
his  fence,  and  go  upon  the  premises  of  another,,  not  inclosed  by  a 
lawful  fence,  he  will  not  be  responsible  for  the  damages  of  the 
first  trespass,  but  will  be  for  any  subsequent  ta-espass  {Gen.  Stat.,. 
eh.  55,  arts.  2-4). 

The  Court  of  Appeals  of  the  State  have  recently  held:  tJiat, 
under  the  statutes  of  Kentucky,  regulating  division  fences,  one  of 
two  adjoining  landowners  cannot  recover  from  the  other  damages- 
for  injuries  done  by  domestic  animals  owned  by  the  other  which, 
have  strayed  upon  his  land,  if  he  himself  is  in  tault  in  any  respect 
for  the  insufiiciency  of  the  fence  between  them  ( Wills  v.  Walters, 
5  Bushes  R.,  351).  And  the  same  court  have  also  recently  held, 
that  a  notice  of  removal  of  a  portion  of  a  division  fence,  and 
partial  severance  within  the  period  required  by  the  act,  answers  the 
63 


498  ^"^^^   OF  FENCES. 

object  of  tlie  law,  and  if  a  violation  thereof,  will  only  subject  tlio 
owner  to  nominal  damages  {Gwinn  v.  Ditto,  3  Bushes  IL,  547). 

In  respect  to  the  obligations  of  railway  corporations  to  fence 
their  roads  in  Kentucky,  the  statutes  of  the  State  seem  to  be 
silent,  and  the  Court  of  Appeals  have  held,  that  where  the  owner 
of  land  grants  to  a  railroad  company  permission  to  construct  its 
road  through  his  land,  and  no  agreement  is  made  in   regard  to 
fencing  it,  the  company  is  not  responsible  for  the  destruction  of 
oattle,  allowed  by  the  owner  to  run  in  the  field,  by  the  locomo- 
tive, nnless  the  injury  could  have  been  avoided  by  the  company's 
agents,  with  due  regard  to  the  safety  of  the  train  and  its  contents 
{Louisville  and  Frankfort  Railroad  Gomjpany  v.  Milton,  W  B. 
Monroe's  JR.,  75).     And  the  same  court  have  also  held  that,  in  the 
absence   of  any   showing   of  negligence,  unskillfulness,  defective 
machinery,  or  recklessness,  a  railroad  company  is  not  responsible 
for  the  value  of  a  mule,  which  jumps  the  fence,  upon  the  track 
only  fifty  yards  ahead  of  a  running  train  ;  otherwise,  had  the  dis- 
tance been  such  that   the   engineer  could   see  and  save  the  mule 
{Louisville,  etc.  Railroad   Company  v.  Wainscott,  3  Bushes  B., 
149).     And  it  has  been  held  by  the  same  court,  that  the  para- 
mount duty  of  a  railroad  company  through  its  agents  intrusted 
with  the  conduct  of  a  train,  is  to  look  to  the  safety  of  the  persons 
and  property  thereon  ;  subordinate  to  which  is  the  duty  to  avoid 
iinnecessary  injuiy  to  animals  straying  upon  the  road.     But  it  was 
held  that  a  railroad  company  wliich  is  not  bound  to  fence  its  track 
is  not  liable  for  injuries  inflicted  by  its  engines  and  trains  upon 
cattle,  etc.,  straying  upon  the  track  of  the  road,  unless  such  injury 
was  caused  by  the  wanton  and  reckless  negligence  of  the  com- 
pany,  or  its   agents  or  servants  {Louisville,  etc.  Railroad  Com- 
pany V.  Ballard,  2  Metcalfe's  R.,  177).     The  same  court  have 
also  recently  held,  that  the  legislature,  in  creating  a  railroad  cor- 
poration and   during  its  existence,  has  the  undoubted  right  to 
increase  or  lessen  the  liability  of  the  company  in  regard  to  injuries 
to  stock  committed  upon  its  road  by  the  company  or  its  agents 
{CBannon  v.  Louisville,  etc.  Railroad  Company,  8  Bush's  R., 
348). 

In  the  State  of  Tennessee,  every  planter  is  required  to  make  a 
sufficient  fence  about  his  cleared  land  in  cultivation,  at  least  five 
feet  high,  and  so  close,  for  at  least  three  feet  from  the  surface  of 
itke  earth,  as  to  prevent  hogs  from  passing  through  the  same  ;  and 


STATUTES    OF  TEXX.  RESPECTIXG   FEXCES.  499 

wbere  any  trespass  shall  have  been  committed  by  horses,  cattle  or 
hogs,  on  the  cleared  and  cultivated  ground  of  any  person,  he  may 
complain  to  a  justice  of  the  peace  of  the  count}^,  who  is  required 
to  cause  two  resident  and  impartial  freeholders  to  be  summoned, 
who  are  to  examine  as  to  the  sufficiency  of  the  fence  of  the  com- 
plainant, and  the  damage  sustained,  and  certify  the  result,  under 
their  hands  and  seals  and  the  hand  and  seal  of  the  justice,  which 
must  be  delivered  to  the  complainant.  If  it  appear  that  the  fence 
was  sufficient,  the  owner  of  the  animal  must  make  full  satisfac- 
tion, and  the  damage  may  be  recovered  by  action,  in  which  the 
justice  and  freeholder's  certificate,  is  made  prima  facie  evidence 
of  the  plaintiti^'s  demand.  But  if  it  appear  that  the  fence  was 
insufficient  no  damages  can  be  recovered,  and  no  person  will  be 
justified  in  killing  or  injuring  animals  trespassing  on  lands  not 
inclosed  by  a  sufficient  fence. 

Partition  fences  are  to  be  erected  and  repaired  at  the  joint 
expense  of  the  occupants ;  or  if  any  person  make  a  fence  a  parti- 
tion fence,  by  joining  of  it,  or  using  it  as  such,  he  is  required  to 
pay  the  person  erecting  it  his  proportion  of  the  expense,  to  be 
determined  by  three  disinterested  freeholders,  summoned  by  a  jus- 
tice of  the  peace,  in  case  the  parties  cannot  agree  as  to  the  same, 
and  the  like  proceedings  are  to  be  had  in  cases  where  partition 
fences  are  rebuilt  or  repaired  by  either  of  the  joint  proprietors, 
the  jury  of  view  being  judges  of  the  necessity  or  advisability  of  the 
improvement  {Code  of  1858,  ch.  3).  And  any  person  who  shall 
willfully  and  wantonly  break  or  throw  down,  mar,  deface  or  other- 
wise injure  any  fence,  hedge  or  ditch,  inclosing  the  land  of 
another,  is  liable  to  be  indicted  for  a  misdemeanor  {Code,  §4652, 
as  amended  hy  Laws  of  1870-71,  ch.  36,  §  3). 

In  a  late  case  before  the  Supreme  Court  of  the  State,  it  appeared 
that  the  dividing  lane  between  two  proprietors  was,  by  mutual 
consent,  closed,  the  owners  each  removing  one-half  of  his  fence, 
and  joining  the  remaining  pieces.  The  court  held  that  the  fence 
formed  by  the  junction  of  the  remaining  parts  was,  within  the 
meaning  of  the  Code,  a  partition  fence,  and  subject  to  the  regula- 
tions of  the  laws  applicable  to  partition  fences.  It  was  further 
decided  in  the  case  that  the  death  of  the  original  owners  of  such 
lands  does  not  annul  the  contract,  but  that  it  is  binding  upon  their 
heirs,  and  if  either  party  determines  to  remove  his  half  of  the  par- 
tition fence,  he  must  give  the  other  the  legal  notice  of  such  inten 


500  i.4TF   OF  FEXCES. 

tion.  If  he  remove  the  fence  without  giving  notice,  he  is  liable 
as  a  trespasser.  And  it  was  declared  that  an  executor,  without 
authority  to  sell,  has  not  such  an  interest  in  the  land  as  will  make 
him  the  proper  person  to  whom  notice  of  the  intention  to  move 
the  fence  should  be  given  {Stallcup  v.  Bradly,  3  ColdioelVs  B., 
406). 

In  one  case  before  the  same  court,  the  action  was  trespass  vi  at 
arin.is  for  removing  the  plaintiff 's  fence.  The  circuit  judge  charged 
that  the  main  question  was,  where  the  line  between  the  parties 
ran,  and  npon  whose  side  of  it  the  alleged  trespass  was  committed. 
If  on  the  defendant's  side,  he  had  a  right  to  move  the  fence; 
otherwise  if  on  the  plaintiff 's  side.  If  the  jury  should  find  the 
fence  to  be  on  the  true  division  line  between  the  parties,  and  that 
it  was  made  and  maintained  jointly  by  both,  then  the  defendant 
had  a  right  to  remove  his  portion  npon  giving  the  plaintiff  reason- 
able notice.  The  court  held,  that  in  the  absence  of  any  prayer 
for  special  instructions,  there  was  in  this  charge  no  error  of  which 
the  defendant  could  complain  {Glowers  v.  Sawyers^  1  Head^s  7?., 
156). 

In  respect  to  the  liability  of  railroad  companies  in  Tennessee 
for  injuries  to  animals  straying  upon  their  track,  the  Supreme 
Court  of  the  State  has  decided  that  the  provisions  of  sections 
1166,  1169  of  the  Code,  that  where  it  is  established  that  stock  has 
been  killed  or  injured  by  a  railroad  company,  the  onus  is  upon  the 
company  of  sho.wing  tiiat  the  injury  was  the  result  of  unavoida- 
ble accident,  is  simply  the  announcement  of  a  common-law  prin- 
ciple {Home  V.  The  3femjphis,  etc.  Railroad  Cbmimny,  1  Cold- 
welVs  7?,,  72). 

In  Mississippi,  all  fences  five  feet  high,  substantially  and  closely 
built  with  plank,  pickets,  hedges  or  other  good  material,  and 
which  are  strong  and  close  enough  to  exclude  domestic  animals  of 
ordinary  habits  and  disposition,  are  taken  and  considered  as  law- 
ful fences,  as  long  as  they  are  kept  in  good  repair.  A  fence  which 
is  constructed  by  making  a  strong  embankment  of  earth  two  feet 
and  a  half  high,  with  sufficient  base,  and  erecting  thereon  a  fence 
of  common  rails,  planks,  pickets  or  hedges  the  same  height  above 
the  embankment,  closely  and  substantially  built,  so  as  to  exclude 
ordinary  stock ;  and  a  fence  made  of  common  rails,  and  built  in 
the  form  known  as  a  worm  fence,  and  which  is  six  feet  high,  built 
of  good,  sound  and  heavy  rails,  well  lapped  and  locked,  and  close 


STATUTES   OF  MISS.    RESPECTING   FEKCES.  501 

enough  to  exclude  ordinary  domestie  animals,  are  also  to  be  taken 
and  considered  as  lawful  fences,  as  long  as  they  are  kept  in  good 
repair. 

Persons  owning  adjoining  land,  or  lots  of  land,  or  being  lessees 
thereof  for  more  than  two  years,  are  bound  to  contribute  equall} 
to  the  maintaining  of  fences  on  the  line  dividing  the  land  or  lots^ 
if  they  are  used  for  the  purposes  of  cultivation  or  depasturing 
stock,  or  inclosed  for  any  other  purpose,  although  any  person  in 
such  cases,  M'ho  may  prefer  to  build  the  fence  on  his  own  land, 
and  leave  a  lane  on  his  own  land,  may  be  excused  fi'om  building 
any  portion  of  the  division  fence,  provided  he  builds  his  own  fence 
Mithin  sixty  days  after  he  shall  give  notice  of  his  intention  to 
build  the  fence  on  his  ow^n  land  as  aforesaid.  In  case  a  party 
bound  to  contribute  to  the  erection  or  repair  of  a  division  fence 
shall  neglect  to  do  so,  after  being  notified  by  the  adverse  proprie- 
tor for  that  purpose,  such  adverse  proprietor  may  construct  the 
wliole  fence,  and  the  delinquent  will  be  bound  to  pay  one-half  the 
value  thereof,  to  be  ascertained  in  the  manner  prescrii)ed  in  the 
act ;  and  all  partition  fences  are  to  be  owned  jointly  by  the  respec- 
tive proprietors.  Where,  from  natural  impediments,  a  line  fence 
is  impracticable  on  the  line,  the  line  may  be  departed  from  on 
cither  side,  but  the  fence  will  notwithstanding,  be  a  partition  fence 
{Revised  Stat.  0/ 1870,  eh.  33,  §§1905-1915). 

Tlie  Supreme  Court  of  the  State  has  recently  decided,  that  the 
mere  fact,  that  stock  is  wandering  on  an  uninclosed  railroad  track, 
does  not  justify  the  agents  or  servants  of  tlie  railroad  company  in 
regarding  such  stock  as  being  unlawfully  there,  or  relieve  them 
from  the  obligation  to  use  proper  precautions.  And  it  was  held, 
that  if  the  stock  is  injured,  through  the  mismanagement  or  neg- 
lect of  such  agents  or  servants,  the  company  is  liable  {Raiford  v. 
llississijypi,  etc.  Railroad  Comj)an//,  43  3Iiss.  R.,  233).  And 
the  same  court  has  also  declared,  that  the  riglit  of  a  railroad  cor- 
poration to  the  exclusive  use  of  its  track  will  not  prevent  it  from 
being  liable  in  damages  for  injury  done  to  cattle  on  the  track, 
Mhere  such  injury  could  have  been  avoided  by  reasonable  skill  and 
care.  And  it  appeared  that  cattle,  pastured  in  uninclosed  lands, 
adjacent  to  the  track  of  a  railroad,  strayed  upon  the  track,  there 
being  no  fence,  and  were  run  over  by  the  cars  and  killed;  the 
court  held,  that  the  cattle  were  not  trespassing  upon  the  track,  so 
as  to  deprive  the  owner  of  his  remedy  against  the  railroad  corpora- 


502  -^^  ^^   OJ^  FENCES. 

tion  ( Yicksburg  and  Jackson  Railroad  Company  v.  Patten^  31 
Miss.  B.,  156).  The  rule  seems  to  be,  that  one  who  seeks  to 
recover  damages  from  a  raHroad  company,  for  injury  done  to  his 
stock  while  ranging  on  the  track  of  such  railroad,  must,  under  the 
provisions  of  the  Revised  Code  of  Mississippi,  show  that  the 
injury  resulted  from  some  mismanagement  or  neglect  on  the  part 
of  the  servants  or  agents  of  the  company  {Memphis,  etc.  Railroad 
Coinpany  v.  Blaheney,  43  Miss.  R.,  218;  Same  v.  Orr,  Jb.,  279). 

In  the  State  of  Louisiana  provisions  are  made  for  the  building 
and  support  of  walls  in  the  cities  and  towns  or  their  suburbs,  and 
every  one  has  a  right  in  such  cities,  towns  or  suburbs,  to  compel 
his  neighbors  to  contribute  to  the  making  and  repairing  of  the 
fences  held  in  common,  by  which  their  houses,  yards  and  gardens 
are  separated,  which  must  be  made  in  the  manner  prescribed  by 
the  regulations  of  the  police.  In  the  country  the  common 
boundary  inclosiires  between  two  estates  are  made  at  tlie  expense 
of  the  adjacent  estates,  if  the  estates  are  inclosed  ;  otherwise,  the 
estate  which  is  not  inclosed  is  not  bound  to  contribute  to  it.  And 
every  fence,  which  separates  rural  estates,  is  considered  as  a 
boundary  inclosure,  unless  there  be  but  one  of  the  estates  inclosed, 
or  unless  there  be  some  title  or  proof  to  the  contrary.  Every 
ditch  between  two  estates  is  supposed  to  be  held  in  common, 
unless  there  be  a  voucher  or  proof  to  the  contrary,  and  must  be 
kept  at  the  expense  of  the  two  contiguous  proprietors  {Revised 
Civil  Code  of  18T0,  ch.  3,  §1,  arts.  675-690).  These  provisions 
of  the  statute  are  quite  simple,  and  they  need  no  commentary  to 
aid  in  understanding  their  meaning  and  effect. 

In  respect  to  the  liability  of  railway  companies  in  Louisiana  for 
damages  to  animals  upon  their  track,  the  Supreme  Court  of  the 
State  has  declared,  that  in  an  action  brought  to  recover  the  value 
of  cattle  killed  on  a  railroad  track  by  the  cars,  the  plaintiff  is  as 
much  bound  to  prove  the  fact  of  gross  negligence  and  want  of 
care  on  the  part  of  the  company  or  its  agents,  as  he  is  to  prove 
the  fact  of  the  killing.  And  it  was  held  in  tlie  case  before  the 
court,  that  the  rights,  duties  and  obligations  of  the  New  Orleans, 
Opelousas,  and  Great  Western  Railroad  Company,  are  created  by 
express  law,  and  until  the  legislature  shall,  by  statute,  require  the 
company  to  inclose  its  road  or  shall  delegate  the  power  to  the 
parochial  authorities,  and  they  shall  exercise  the  same,  the  com- 
pany will  be  under  no  obligation  to  inclose  its  road,  or  any  part 


STATUTES   OF  TEXAS  RESPECTING    FENCES.  503 

tliereof,  with  fences  or  barriers.  It  was  accordingl.y  held,  that  if 
cattle  stray  upon  the  track  of  this  road  and  be  killed  or  maimed 
by  accident,  it  will  be  damninin  absque  injuria,  and  the  owner  will 
have  the  loss  to  bear  {Knight  v.  The  New  Orleans,  etc.  Railroad 
Company,  15  La.  Anmial  R.,  105). 

By  the  statutes  of  Arkansas,  all  lields  and  grounds  kept  for 
inclosures  are  required  to  be  inclosed  with  a  fence  suthciently 
close,  composed  of  sufficient  posts  and  rails,  posts  and  paling,  pali- 
sades, or  rails  alone,  laid  up  in  the  manner  commonly  called 
worm  fence  ;  all  fences  composed  of  rails  alone  are  required  to  be 
five  feet  highj  and  the  other  fences  specified  must  be  five  feet  high, 
and  the  posts  deeply  and  firmly  set  in  the  earth.  The  sufficiency 
of  any  fence  is  to  be  determined  by  persons  summoned  to  view 
the  same  as  provided  by  the  act.  The  owners  of  beasts  trespass- 
ing upon  inclosures  sufficiently  fenced,  are  required  to  make  repara- 
tion to  the  party  injured  for  the  true  value  of  the  damages,  and 
for  every  subsequent  trespass  for  double  damages ;  for  the  third 
oflense  the  beast  may  be  killed.  But  no  person  is  justified  for 
killing  or  injuring  any  animal  trespassing  on  lands  not  sufficiently 
fenced;  and  whenever  the  sufficiency  of  a  fence  is  in  dispute,  the 
the  same  must  be  determined  by  three  disinterested  householders 
of  the  neighborhood,  summoned  by  a  justice.  Where  any  person 
shall  inclose  any  land  adjoining  another's  land  already  inclosed 
with  a  fence,  so  tliat  any  part  of  the  fence  first  made  becomes  the 
partition  fence  between  them,  in  such  case,  the  charge  of  such 
division  fence,  as  flir  as  it  is  inclosed  on  both  sides,  must  be  equally 
borne  and  maintained  by  both  parties  {Rev.  Stat.,  ch.  76 ;  Digest 
of  1858,  ch.  87).  And  any  landlord  who  shall  fail  to  make  or 
cause  to  be  made  his  fence  or  inclosure  around  his  land  which  may 
be  in  cultivation  in  conformity  with  the  act,  is  made  guilty  of  a 
misdemeanor  {Laws  o/*1873,  ch.  96). 

And  finally,  in  the  State  of  Texas,  every  person  is  required  to 
make  a  sufficient  fence  about  his  cleared  land  in  cultivation,  at 
least  five  feet  high,  and  make  such  fence  sufficiently  close  to  pre- 
vent hogs  from  passing  through  the  same,  not  leaving  a  space  of 
more  than  six  inches  in  any  one  place,  for  at  least  three  feet  from 
the  ground.  And  for  trespasses  on  such  lands  thus  inclosed,  by 
animals,  the  owner  of  the  land  may  recover  the  damages,  which 
may  be  assessed  by  two  disinterested  freeholders  on  the  summons 
of  a  justice  of  the  peace,  and  if  any  person  not  having  a  lawful 


504  -^^  "'   ^^  FEXCES. 

fence,  shall  injure  stock  found  on  his  land,  he  is  made  liable  to 
make  full  satisfaction  {PaschaVs  Annotated  Digest,  639,  040). 

The  Supreme  Court  has  held  by  a  majority  judgment,  that  in 
an  action  brought  to  recover  damages  from  a  railroad  company  for 
injury  done  to  cattle  by  its  train  while  crossing  its  track,  the 
burden  is  on  the  plaintifi'  to  prove  negligence  on  the  part  of  the 
company.  Wheeler,  Ch.  J.,  dissented,  and  held  that  in  sucli  a 
case  the  presumption  was  against  the  company,  and  it  was  called 
upon  to  excuse  itself  from  culpable  blame.  But  the  majority  of 
the  judges  held  otherwise,  and  their  opinion  stands  as  the  judg- 
ment of  the  court  {Bethje  v.  Houston,  etc.  Railroad  Company, 
26  Texas  i?.,  604). 

This  closes  the  examination  of  the  statutory  policy  of  the  sev- 
eral States  relating  to  fences,  and  it  will  have  been  observed  that 
all  of  the  States  have  laws  recognizing  in  some  way  the  obliga- 
tions to  fence  ;  in  some,  the  statutes  are  limited  to  regulating  the 
subject  of  division  or  line  fences,  while  in  others,  the  statute  pro- 
vides for  inside  and  outside  fences  as  well.  The  principles  of  the 
common  law  in  relation  to  fences  are  fully  recognized  in  some  of 
the  States,  and  in  others,  and  perhaps  in  a  majority,  the  common 
law  is  in  force,  with  modifications,  while  in  a  few,  the  English 
common  law  is  discarded  altogether.  There  is  a  sameness  in  the 
statutes  of  some  of  the  States,  though  usually  differing  in  essen- 
tial particulars ;  but  the  policy  is  sufficiently  uniform  as  to  make 
the  decisions  of  the  courts  in  one  State,  in  some  respects,  author 
ity  in  others. 


CHAPTER  XLIII. 

THE  RIGHTS  AND  LIABILITIES  OF  LANDLORDS  AND  TENANTS  IN  RESPECT 

TO  THE  FENCES  ON  THE  DEIVHSED  PROPERTY RIGHTS  OF  THE  TENANT 

IN  HEDGES,  BUSHES  AND  OTHER  FENCES  ON  THE  DEMISED  PROPERTY — - 
LIABILITY  TO  REPAIR  FENCES  AS  BETWEEN  LANDLORD  AND  TENANT  — 
COVENANTS  TO  KEEP  FENCES  IN  REPAIR. 

The  suV)ject  of  making  and  repairing  fences  upon  demised  pro- 
perty is  usually  regulated  by  the  terms  of  the  lease  under  which 
the  property  is  held  ;  and  it  may  be  pertinent  here  to  remark  that 
there  are  two  well  established  principles  relating  to  the  construe 


FENCES,    AS  BETWEEN  LANDLORD   AND    TENANT.  505 

tion  of  leases,  as  well  as  other  written  instruments.  Tlie  first  is, 
that  in  construing  a  covenant  or  restriction,  .where  there  is  no 
doubt  or  ambiguity,  it  must  be  most  favorable  to  the  party  in 
whose  favor  the  covenant  or  restriction  is  made,  and  most  strongly 
against  the  party  covenanting  or  imposing  a  restriction  upon  him- 
self. This  is  a  well  settled  elementary  principle,  and  has  been 
several  times  referred  to  in  the  first  part  of  this  treatise.  The 
second  principle  is,  that  all  covenants  or  restrictions  contained  in 
a  lease  or  deed  are  to  be  presumed  to  continue  for  the  whole  dura- 
tion of  the  estate  created,  unless  the  contrary  manifestly  appears 
{G[ford  V.  The  First  Presbyterian  Society  of  Syracuse,  56  Barh. 
li',  114). 

If  there  be  no  special  agreement  or  covenant  in  the  lease  respect- 
ing the  repairs  of  the  fences  upon  the  demised  premises,  the  obli- 
gation then  rests  upon  the  actual  occupant  or  the  tenant.  Lord 
Kenyon,  in  an  early  case  in  the  English  Court  of  King's 'Bench, 
said  "  that  the  action  for  non-repair  of  fences  could  not  be  brought 
against  the  owner  of  the  inheritance,  where  it  was  in  the  possession 
of  another  person.  That  it  was  so  notoriously  the  duty  of  the 
actual  occupier  to  repair  the  fences,  and  so  little  the  duty  of  the 
landlord,  that,  without  any  agreement  to  that  effect,  the  landlord 
might  maintain  an  action  against  his  tenant  for  omitting  to  repair, 
upon  the  ground  of  the  injury  done  to  the  inheritance;  and 
deplorable  indeed,  he  said,  would  be  the  situation  of  landlords,  if 
they  were  liable  to  be  harassed  with  actions  for  the  culpable  neg- 
lect of  their  tenants"  {Cheetham  v.  Iloinpson,  4  Term  R.,  318; 
Bex  v.Watts,  1  SelL  R.,  357). 

These  remarks  show,  in  the  absence  of  positive  agreement  upon 
this  subject,  not  only  the  obligations  of  the  tenant  as  to  his  land- 
lord, but  his  obligations  in  this  respect  as  to  third  parties.  It 
would  seem  that,  ordinarily,  the  action  brought  to  recover  damages 
for  an  injury  arising  from  the  fences  of  property  being  out  of 
repair,  should  be  brought  against  the  occupier  of  the  premises  for 
the  time  being,  and  such  are  the  authorities  ( Vide  Russell  v. 
Sheaton,  3  Queeti's  Bench  R.,  449  ;  Mills  v.  Ilolten,  2  Hurl.  i& 
Nev.  R.,  14).  But  if  the  wrong  causing  the  damages  arises  from 
the  malfeasance  or  misfeasance  of  the  landlord,  he  may  be  sued 
mstead  of  the  tenant  {Todd  v.  Flight,  9  Com.  Bench  R.,  N.  S., 
377,  389).  For  example,  if  the  landlord  has  taken  the  burden  of 
repairing  the  ])remises  upon  himself,  and  has  neglected  his  dut}? 
64 


500  -^^^''   ^^   FENCES. 

in  this  regard,  lie  may  be  sued  instead  of  the  tenant  {Payne  v. 
Rogers,  2  II.  Black.  H.,  348).  The  same  rule  would  apply  in 
case  the  landlord  should  let  his  premises  in  such  a  state  that  they 
must,  under  ordinary  circumstances,  become  a  nuisance  to  the 
public  or  to  the  adjoining  owners  {Hunt  on  Fences,  124,  and  cases 
there  cited). 

It  has  long  been  well  settled  by  well  recognized  English  authori- 
ties that  a  lessee  for  life  or  years  has  only  a  special  interest  and 
property  in  the  fruit  and  shade  of  timber  trees,  so  long  as  they 
are  annexed  to  the  land ;  but  he  has  a  general  property  in  hedges, 
bushes  and  trees,  which  are  not  timber,  and  also  in  the  cuttings 
of  a  hedge,  whoever  cuts  it.  If,  therefore,  the  tenant  suffers 
hedges  or  trees,  not  timber  to  be  c>it  down  or  lopped,  the  pro- 
perty in  such  cuttings  belongs  to  him  (1  Roll.  Ah\,  181).  How- 
ever, if  he  abuse  his  authority  in  this  respect  and  grub  up  or 
destroy  fences,  whereby  the  identity  of  the  property  is  destroyed 
and  the  inheritance  injured,  he  may  subject  himself  to  an  action 
in  the  nature  of  waste  at  the  suit  of  the  landlord,  or  lie  may  be 
restrained  by  injunction  {Berriman  v.  Peacock,  9  Bing.  R.,  384). 
So  if  there  be  a  quickset  fence  of  white  thorn,  and  the  tenant 
stub  it  up  or  suffer  it  to  be  destroyed,  for  this  and  a  like  restric- 
tion an  action  in  the  nature  of  waste  lies,  although  it  is  thought 
that  the  tenant  may  stub  up  bushes,  furze  and  thorns  for  meliora- 
tion, for  this  would  be  accounted  good  husbandry  {Coke  on  Zitt., 
5Sa). 

In  a  case  in  the  English  Court  of  Exchequer  Chamber,  an 
indenture  of  demise  contained  an  exception  of  all  timber,  timber- 
like and  other  trees,  bushes  and  thorns,  other  than  such  bushes 
and  thorns  as  should  be  necessary  for  the  repair  offences;  and 
the  lessee  covenanted  to  keep  the  fences  in  repair  during  the 
term,  finding  all  materials,  except  rough  timber,  stakes  and  bushes, 
which  if  growing  on  the  premises,  the  lessor  himself  covenanted 
to  provide.  The  court  held,  that  the  provision  as  to  bushes  and 
thorns  necessary  for  repairs  was  not  an  exception  out  of  the  excep- 
tion, but  that  all  trees,  bushes  and  thorns  were  excepted  out  of 
the  demise,  whether  part  of  the  fences  or  not,  or  whetlier  neces- 
sary for  repairs  or  not ;  and  the  court  considered  that  the  tenant 
could  not  take  any  of  the  said  thorns  and  buslies  for  repairs,  until 
they  were  set  out  to  him  by  the  landlord  pursuant  to  his  cove- 
nant {Jenny  v.  Brook,  6  Queen's  Bench  R.,  323). 


FENCES,   AS  BETWEEN  LANDLOED   AND    TENANT.  507 

It  is  the  well  settled  doctrine  of  the  English  courts,  that  the 
mere  relation  of  landlord  and  tenant  is  a  sufficient  consideration 
for  the  tenant's  promise  to  manage  his  farm  in  a  husbandlike  man- 
ner, and  that  one  of  the  duties  devolving  upon  him  in  consecpience 
of  this  implied  promise,  in  the  absence  of  any  express  agreement 
to  the  contrary  is,  that  he  shall  maintain  the  fences  of  thepro- 
perty  demised  to  him  (  Vide  Powley  v.  Walker^  5  Term  R.,  373  ; 
Cheetham  v.  Ilampsori,  4  ih.,  318).  And  for  this  purpose,  as  is 
declared  by  an  old  and  approved  elementary  authority,  the  tenant 
is  entitled  to  reasonable  estovers,  and  may  cut  timber  to  keep  the 
walls,  pales,  fences,  hedges  and  ditches  in  the  same  state  of  repair 
in  which  he  found  them.  But  he  cannot  make  new  fences  or 
other  erections,  without  being  liable  for  waste.  If  there  is  no 
proper  wood  on  the  premises  for  repairs,  he  is  not  obliged  to  pur- 
chase other  wood,  but  is  discharged  from  his  liabilities  in  this 
respect  {Coke  on  Litt.,  41  h  ;  53  a,  53  h).  But  it  has  been  held 
by  the  English  Court  of  King's  Bench,  that  a  plea  to  a  declara- 
tion against  a  tenant  for  not  using  the  premises  demised  to  him  in 
a  husbandlike  manner,  and  for  not  repairing  fences,  that  there  was 
no  proper  wood  (without  specifying  it)  which  the  defendant  had  a 
right  to  cut  for  repairs,  and  that  the  plaintiff  ought  to  have  set 
out  proper  wood,  without  averring  any  request  or  custom  of  the 
country  in  this  respect,  was  bad  (  Whitfield  v.  Weedon,  2  Ckittifs 
R.,  685). 

It  seems  that  the  question  whether  estovers  are  good  or  other- 
wise depends  upon  the  application  which  is  made  of  them,  that  is, 
whether  they  are  applied  to  the  benefit  of  the  estate  upon  which 
they  are  cut.  It  is  not  competent  for  a  tenant  to  cut  down 
estovers  on  one  estate  and  apply  them  in  making  repairs  upon 
another  {Lee  v.  Alston,  1  Bro.  C,  C,  196  ;  8.  C,  3  ih.,  37).  If 
he  sell  the  timber  cut,  and  with  the  produce  pay  the  wages  of 
workmen,  or  even  if  he  exchange  it  for  timber  better  suited  for 
tlie  repairs  wanted,  or  better  seasoned,  according  to  the  English 
authorities,  he  is  liable  to  an  action  of  waste  (  Vide  Leiois  BowWs 
Case,  11  Coke's  R.,  79  h  ;  Simmons  v.  Norton,  7  Bing.  R.,  640; 
Attorney- General  v.  Stowell,  2  Austr.  R.,  601;  Whitfield  v. 
Bewit,  2  R.  Wms.  R.,  242  ;  Gower  v.  Eyre,  Cooper's  0.  C,  156). 
And  he  must  not  cut  down  timber  for  future  repairs,  nor  for 
repairs  which  are  wanted  through  his  own  default,  for  to  cut  tim- 
ber to   repair  waste  is  double  waste.     But  where  the  lord  of  a 


508  -^^1''   OF  FENCES. 

manor  brought  an  action  of  ejectment  against  a  tenant  for  life  for 
cutting  down  timber,  which  was  not  immediately  applied  in 
remedying  existing  defects,  and  was  rather  in  excess  of  the  quantity 
required,  the  court  refused  to  disturb  the  verdict  of  a  jury,  which 
found  that  timber  was  cut  hona  fide  for  the  purpose  of  making 
necessary  repairs,  and  was  intended  to  have  been  so  applied  in 
due  course. 

A  lessee  for  life  or  years  who  takes  reasonable  estovers  for 
repairing  hedges  and  fences,  is  not  chargeable  with  waste  by  reason 
of  his  having  entered  into  an  express  covenant  to  repair  at  his 
own  charge  ;  or  by  reason  of  the  lessor  having  covenanted  to  do 
the  repairs  himself.  And  where  the  lease  contains  a  clause 
empowering  the  lessee  to  take  hedge — bote  by  assignment,  it 
appears  that  he  may  take  it,  although  it  be  not  assigned,  for  such 
a  provision  does  not  take  away  the  power  which  the  law  gives 
him  ;  but  it  is  otherwise,  if  tlie  lessee  covenants  negatively  that 
he  will  not  take  the  wood,  until  it  is  assigned  to  him  by  the  lessor. 
These  points  have  long  been  settled  in  England,  and  may  be  said 
to  be  almost  elementary.  The  authorities  are  collected  in  Mr. 
Hunt's  work  on  fences,  but  they  need  not  be  cited  here.  The 
principles  are  all  as  applicable  in  this  country  as  in  England  (  Vide 
Hunt  on  Fences,  12S).  According  to  the  doctrine  laid  down  in 
an  early  Massachusetts  case,  it  is  not  waste  for  a  tenant  for  life  to 
cut  down  timber  trees  for  the  purpose  of  making  necessary  fences 
or  repairs  on  the  estate,  and  sell  them,  and  purchase  fencing 
material  with  the  proceeds  for  such  fences  or  repairs,  provided 
this  be  proved  to  be  the  most  economical  mode  of  making  the 
fences  or  repairs  {Loornis  v.  WiTher,  5  Mass.  E.,  13).  In  such 
cases,  it  is  a  question  for  the  jury  to  decide,  whether  the  trees 
were  cut  down  for  the  purpose  of  repairing  the  fences  upon  the 
premises  hona  fide,  and  were  in  a  course  of  application  for  that 
purpose.  This  was  expressly  laid  down  by  Lord  Ellenborough, 
C.  J.,  in  the  English  Court  of  King's  Bench  in  the  early  part  of 
the  present  century,  and  the  rule  is  uniformly  adopted  both  in 
England  and  in  this  country  {Doe,  ex  dem.  Foley  v.  Wilson,  1 1 
Easfs  M.,  56 ;  and  vide  Jackson  v.  Brownson,  7  Johns.  R.,  227 ; 
McCay  V.  Wait,  51  Barb.  R.,  225).  But  although  the  tenant 
may  be  under  obligation  to  keep  up  the  fences  upon  the  demised 
premises,  and  for  the  purpose  of  discharging  the  obligation,  has  a 
right  to  take  the  material  for  the  fences  from  the  land,  he  will  not 


FENCES,    AS   BETWEEN  LANDLORD  AND   TENANT.  509 

be  justified  in  going  on  and  taking  the  same  indiscriminately, 
without  reference  to  what  may  best  be  spared  for  the  purpose. 
In  cases  of  wood  for  fire  bote,  it  has  been  held  that  the  tenant  is 
first  bound  to  cut  the  dry,  fallen,  or  perishing  wood,  and  the  same 
principle^  should  govern  the  taking  of  timber  for  fencing  material 
{Yide  Jackson  v.  Brownson^  Y  Johns.  IL,  227). 

The  doctrine  of  the  case  of  Jackson  v.  Brownson  is,  that  a 
tenant  for  life  of  farming  land  is  entitled  to  cut  down  and  use  so 
much  of  the  standing  timber  on  the  farm,  as  may  be  necessary  for 
fuel,  for  making  and  repairing  fences  and  buildings;  and  if  the 
land  is  wild  and  imcultivated,  he  may  cut  down  so  much  of  the 
timber  as  may  be  proper  for  the  purposes  of  cultivation  ;  but  he 
may  not  remove  it  so  far  as  to  materially  lessen  the  value  of  the 
inheritance.  This  doctrine  has  been  expressly  sanctioned  by 
the  Court  of  Appeals  of  the  State  of  New  York ;  but,  of  course, 
no  timber  should  be  cut  which  it  is  necessary  to  retain  for  the  use 
of  the  farm,  so  long  as  there  be  other  timber  perishing,  or  other- 
wise sufficient  for  the  maintaining  of  the  fences  upon  the  premises 
demised  ( Yide  Yan  Deusen  v.  Young^  29  N.  Y.  B.,  9).  A  ten- 
ant for  years  has  the  right,  as  well  as  a  tenant  for  life,  to  cut  wood 
on  the  demised  farm  for  fires  and  repairs,  within  the  rules  stated, 
provided  always,  that  the  quantity  cut  is  not  unreasonable 
{Mather  v.  Shar_pe,  14  Allen^s  B.,  43).  And,  as  suggested,  it  is 
well  settled  that  a  tenant  for  life,  of  farming  land,  is  entitled  to  cut 
down  and  use  so  much  of  the  timber  on  the  farm,  as  may  be  neces- 
sary for  fuel,  and  to  keep  up  the  buildings  and  fences ;  and  whilo 
he  must  not  be  indiscriminate  in  his  selection  of  the  timber  for 
use,  he  is  under  no  obligation  to  use  decaying  timber  and  down 
trees,  provided  they  are  unfit  for  use  or  would  cost  more  than 
their  value  to  secure.  The  law  does  not  demand  such  an  unreason- 
able exercise  of  his  privileges  by  the  tenant,  or  impose  so  harsh  a 
rule  as  that ;  and  while  it  prohibits  waste,  it  also  permits  a  reason- 
able enjoyment  of  the  rights  which  are  conferred  upon  the  tenant 
by  the  grant  under  which  he  holds  {Butherford' \ .  Aiken,  2  N'. 
Y.  S.  C.  7?.,  281).  As  has  been  before  intimated,  the  tenant  by 
virtue  of  his  occupancy,  is,  as  a  rule,  liable  to  third  persons  for  the 
consequences  resulting  from  a  neglect  to  keep  the  fences  upon  the 
demised  premises  in  repair,  to  the  same  extent  that  his  landlord 
would  be,  if  in  possession  himself  {Taylor  v.  Whitehead,  2  Doug. 
B.,  745).     Where  the  landlord  has  taken  upon  himself  the  burden 


510  LAW  OF  FENCES. 

of  keeping  the  fences  in  repair,  the  rule  has  been  held  different. 
But  it  must  be  remembered,  that  the  lessor  is  never  bound  to  keep 
the  fences  upon  the  demised  premises  in  repair,  except  by  force 
of  an  express  contract  or  covenant  so  to  do  {Brewster  v.  De  Fre- 
■mery,  33  Col.  M.,  341).  And  when  he  has  bound  himself  to 
make  such  repairs,  he  cannot  be  made  liable  for  their  cost  to  the 
tenant,  when  made  without  giving  any  notice  to  the  landlord  to 
make  them  {Fairot  v.  Meitler,  21  La.  An.  R.,  220). 

But  where  there  is  no  stipulation  between  the  parties  to  a  lease 
on  the  subject  of  repairs,  the  tenant  is  bound  to  keep  the  premi- 
ses in  repair,  and  this  doctrine  extends  to  the  subject  of  fences 
upon  the  premises  demised  {Long  v.  Fitzsimmons,  1  Watts  (& 
Serg.  B.,  530).  And  unless  a  promise  to  repair  be  made  by  the 
landlord  in  consideration  of  the  lease,  the  tenant  cannot  give  evi- 
dence of  it;  or  of  a  neglect  by  the  landlord  by  way  of  set-off  in  a 
suit  for  rent  {Phillips  v.  Ifimger,  4  Wharton's  S.,  226,  hut  vide 
Caulk  V.  Everly^  6  ib.,  303).  It  is  never  in  the  power  of  a  tenant 
to  make  repairs  at  the  expense  of  his  landlord,  unless  there  be  a 
special  agreement  between  them,  authorizing  him  to  do  it.  The 
tenant  takes  the  premises  for  better  and  for  worse,  and  cannot 
involve  his  landlord  in  expense  for  repairs,  without  his  consent 
{Mumford  v.  Bi'ouan^  6  Coio.  i?.,  475,  and  vide  Broicn  v.  Bur- 
rington,  36  Vt.  E.,  40;  Fstep  v.  Estep,  22  Lnd.  E.,  114).  Upon 
a  letting  of  real  estate,  lands  or  tenements,  there  is  no  implied 
warranty  that  they  are  fit  for  the  use  for  which  the  lessee  requires 
them.  The  maxim  of  caveat  emptor  applies  to  the  contract  of 
hiring  real  property,  as  it  does  to  the  transfer  of  all  j^roperty  real, 
personal  or  mixed,  with  one  or  two  recognized  exceptions 
{McGlashan  v.  Talhnadge,  37  Barh.  Li.,  313).  And  where  there 
is  no  stipulation  in  the  lease  in  respect  to  repairs,  the  tenant  takes 
the  risk  of  the  future  condition  of  the  premises  and  is  bound  to 
keep  them  in  repair,  as  before  stated  {Lihhey  v.  Tolferd,  48 
ILaine  B.,  316). 

Sometimes  the  lessee  is  expressly  bound  by  his  covenants  in  the 
lease,  to  maintain  the  fences  upon  the  demised  premises,  during 
the  term.  In  such  cases  no  doubt  exists  as  to  the  liability  and 
obligations  of  the  tenant,  although  it  sometimes  becomes  a  ques- 
tion as  to  the  extent  of  the  liability.  A  covenant  on  the  part  of 
the  lessees  in  a  lease,  "  to  keep  the  buildings  and  fences  in  good 
repair,  except  natural  wear  and  tear,"  was  recently  held  by  the 


FENCES,   AS  BETWEEX  LANDLORD  AND    TENANT.  511 

^ 

Supreme  Court  of  the  State  of  New  York  to  bind  tlieiii  to  rebuild 
in  case  of  accidental  destruction  by  fire  or  otherwise.  It  was 
remarked  by  the  court  that  some  authorities  hold  that  where  the 
covenant  by  the  lessee  is  to  repair  and  leave  the  premises  in  the 
same  state  as  he  found  or  received  them,  or  language  to  that  effect, 
he  is  merely  to  use  his  best  endeavors  to  keep  them  in  the  same 
tenantable  repair  ;  and  is  not  bound  by  such  covenant  to  restore 
buildings  or  fences  destroyed  by  fire  or  otherwise  during  the  term, 
without  his  fault.  But  it  was  declared  that  where  the  covenant  is 
to  repair  or  keep  in  repair  generally  the  buildings  and  fences, 
without  the  qualifying  words  mentioned,  all  the  authorities  hold 
that  it  requires  the  tenant  to  rebuild  the  fences,  etc.,  in  case  of  the 
accidental  destruction  of  the  same  {Mcintosh  v.  Toioer,  49  Barb. 
M.,  550,  555).  This  is  the  well  settled  doctrine  of  the  courts. 
But  in  all  the  adjudicated  cases  where  this  liability  has  been  held 
to  attach  to  the  lessee  he  has  entered  into  an  express  covenant  to 
repair,  and  a  simple  covenant  on  the  part  of  the  lessee  to  surrender 
up  the  premises  at  the  expiration  of  the  term  in  the  same  condi- 
tion they  are  in  at  the  date  of  the  lease,  natural  wear  and  tear 
excepted,  with  no  covenant  to  repair  or  rebuild,  does  not  bind  the 
tenant  to  rebuild  fences  in  the  place  of  others  which  have  been 
destroyed  by  fire  or  other  accidental  causes  during  the  term  ot  the 
lease.  In  this  latter  case  the  tenant  is  merelj^  required  to  use  his 
best  endeavors  to  keep  the  fences  on  the  premises  in  the  same 
state  of  repair  as  when  he  entered  upon  the  lease.  Natural  and 
unavoidable  decay  is  no  breach  of  such  a  covenant ;  but  a  cove- 
nant to  repair  generally  requires  him  to  uphold  the  fences.  This 
seems  to  be  the  doctrine  of  the  courts,  both  in  this  country  and  in 
England  (  Vide  Hitchins  v.  Warner,  5  Barb.  B.,  QQQ,  and  the 
authorities  cited  by  Sill,,  J.,  in  giving  the  opinion  of  the  court). 
It  may  be  added  that  in  all  cases  where  the  lessee  is  bound  by  the 
terms  of  his  lease  to  keep  up  the  fences  upon  the  leasehold  premises, 
his  assignee  is  under  the  same  obligation  that  he  was  prior  to  the 
assignment  of  the  terra,  A  covenant  to  keep  the  fences  upon  the 
leasehold  premises  in  repair  runs  with  the  land ;  and  such  a  cove- 
nant will  descend  to  the  heir  of  the  covenantor,  even  though  the 
heir  is  not  named  in  the  lease  ;  and  he  may  sue  for  any  fresh  breach 
thereof,  if  he  is  entitled  to  the  reversion  {Lougher  v.  Williams,  2 
Lev.  R.,  92).  And  on  a  covenant  to  repair,  on  a  breach  thereof 
by  the  tenant  or  his  assignee,  the  heir  of  the  covenantee  has  the 


512  i^ir   OF  FENCES. 

action,  tliongli  the  premises  were  out  of  repair  during  the  lifetime 
of  tlie  ancestor,  and  continued  so  afterward  ( Vivian  v.  Campiov^ 
1  Salk.  R.,  141  ;  S.  C,  2  Nev.  &  Mann,  i?.,  550).  And  a  cove- 
nant, on  the  part  of  the  landlord,  to  renew  the  lease,  cannot  be 
enforced  by  the  tenant  or  his  assignee  where  there  is  a  breach  ot 
the  obligation  to  keep  the  fences  in  repair.  For  example,  in  a 
case  before  the  Court  of  Exchequer  of  Ireland,  where  a  bill  was 
Hied  to  compel  the  renewal  of  a  lease,  and  it  appeared  that  the 
fences  upon  the  premises  had  not  been  kept  up  as  required  by  the 
lease,  the  court  held  that  the  landlord  was  not  bound  to  execute 
the  renewal  until  the  fences  were  put  up  by  the  tenant  pursuant  to 
the  requirements  of  the  lease  {Douglas  v.  McCausland,  Hayes* 
i?.,  254).  And  the  English  Court  of  Chancery  has  frequently 
held  that  a  tenant  who  has  been  guilty  of  a  breach  of  the  covenant 
to  keep  the  premises  demised  in  repair,  for  which  the  lessor  has  a 
right  of  reentry,  is  not  entitled  to  a  specific  performance  of  an 
agreement  for  a  lease,  or  of  a  covenant  for  renewal  {IJill  v.  Bar- 
clay, 18  Ves.  Ji.,  56  ;  White  v.  Warner,  2  MerivaWs  H.,  459  ;  and 
vide  Gourlay  v.  Duke  of  Somerset,  1  Ves.  dc  Bea.  R.,  68  ;  Lovat 
V.  Lo7'd  Ranelagh,  3  ih.,  29). 


The  Law  of  Boundaries,  Fences  and 
'Window   Lights. 


Fart  III. 


OF  THE  LAW  OF  WINDOW  LIGHTS. 


65 


CHAPTER  XLIY. 

[MPORTANCE     AND    NATURE    OF     THE      EIGHT     TO     LIGHT     AND    AIK — • 
SUGGESTIONS     IN     RESPECT     TO    THE     RIGHT    OF   PROSPECT    OR    VIEW 

AND    PURE    AIR RIGHT    TO     WINDOW     LIGHTS   THE     SAME     IN    CITY 

AND    COUNTRY. 

The  right  to  the  undisturbed  enjoyment  of  property  in  lionses 
and  otlier  buildings,  and  more  especially  that  which  pertains  to  the 
free  access  of  light  and  air,  has  long  been  a  subject  of  priniai-y 
importance  in  the  countries  of  the  old  world,  but  until  within  the 
last  few  years  it  has  not  been  regarded  with  any  peculiar  interest 
in  the  American  States,  although  it  has  now  become,  in  this 
country,  a  subject  of  growing  importance.  When  a  country  is 
new,  and  land  is  comparatively  cheap,  the  disposition  is  small  to 
crowd  the  buildings  of  a  town  or  city  into  close  proximity  with 
each  other,  and,  as  a  consequence,  parties  have  little  or  no  concern 
in  respect  to  the  obstruction  of  light  and  air.  But,  as  the  popula- 
tion increases,  and  land  becomes  more  expensive,  the  desii'e  is 
immediately  apparent  to  crowd  the  buildings  more  closely  together, 
and  the  subject  of  light  and  air  becomes  more  imj)ortant.  The 
amazing  rapidity  with  which  cities  have  sprung  up  in  certain 
portions  of  this  continent,  within  the  last  live  and  twenty  years,  and 
the  gigantic  growth  which  has  attended  some  of  the  older  cities 
of  this  country,  within  the  same  period,  together  wuth  the  marvel- 
ous increase  in  the  value  of  the  lands  upon  which  many  of  those 
cities  are  located,  have  made  a  thorough  knowledge  of  the  right 
to  the  enjoyment  of  light  and  air  a  matter  most  desirable,  if  not 
of  abiding  necessity.  Cases  have  been  occurring,  more  or  less 
frequently,  of  late  years,  in  the  American  courts,  in  which  the 
law  of  window  lights  has  been  thoroughly  examined,  and  the  whole 
question  elaborately  discussed,  so  that  a  very  satisfactory  conclu- 
sion may  be  arrived  at  in  respect  to  the  principles  by  which  the 
subject  is  governed. 

The  right  to  window  lights  is  generally  considered  as  the  privi- 
lege which  a  party  enjoys  of  having  light  and  air  transmitted  over 


516  i^TF   OF   WINDOW  LIGHTS. 

the  adjoining  premises  on  to  his  own.     By  the  Eoman  law,  light 
and  air  were  considered  as  some  of  those  things  wliich  had  the 
name  of  res  communes,  and  which  were  defined  to  be  "  things, 
the  property  of  wliich  belongs  to  no  person,  but  the  use  of  all ;" 
and  they  are  so  regarded  by  the  English  law.     In    this  respect, 
light  and  air  are  placed  in  the  same  category  with  running  water, 
which  may  be  appropriated  and  enjoyed  by  every  one  as  opportu- 
nity offers,  but  no  one  can  acqiiire  an  absolute  property  in  it.    Upon 
this  principle,  it  is  obvious  that  no  person  can  have  the  right  to 
the  possession  of  all  the  light  and  air  wliich  in  all  future  time 
will  pass  over  a  given  space.     In  other  words,  no  one  can  acquire 
a  permanent  property  in  light  and  air ;  but  the  rather,  the  right 
to  them  consists  in  some  obligation  imposed  on  the  owner  of  an 
adjoining  space,  to  refrain  from  using  the  same  so  as  to  interfere 
with  the  light  and  air  which  will  pass  over  it  to  the  tenement  to 
which  the  right  is  annexed.    This  obligation  of  the  adjacent  owner 
that  he  will  not  so  use  his  own  land  as  to  obstruct  the  access  of 
light  and  air  to  the  adjoining  house  or  other  building,  is  one  of 
that  class  of  rigiits  know  to  the  law  as  easements,  and  an  easement 
is  defined  by  a  popular  English  writer  as  "a  privilege  without 
profit  which  the  owner   of  one   neighboring   tenement   hath   of 
another,  existing  in  respect  of  their  several  tenants,  by  which  the 
servient  owner  is  obliged  to  suffer,  or  not  to  do  something  on  his 
own  land  for  the  benefit  of  the  dominant  owner"  {Gale  on  Ease- 
ments, 3f/  ed.,  5).      Of  course  there  must  be  two  distinct  tene- 
jnents  —  the   dominant,    to   which    the    right   belongs,   and   the 
servient,  on  which  the  obligation  is  imposed — to  constitute  an 
easement.     The  right  to  window  lights  is  regarded  as  a  continu- 
ous easement.      An  easement  is  an   incorporeal  right,  and  Sir 
Edward  Coke  says,  "  that  a  thing  incorporeal  cannot  be  appurte- 
nant or  appendant  to  another  thing  incorporeal  "  {Colce  on  Litt., 
121  h).     But  Mr.  Gale  considers  that  the  true  test  of  what  things 
can  be   appurtenant   to   what   is   the  propriety   of  the   relation 
between  the  principal  and  the  adjunct,  which  may  be  found  out 
by  considering  whether  they  so  agree  in  nature  or  quality  as  tc 
be  capable  of    union  without   any  incongruity  {Gale  on  Ease- 
ments, 9).     Whatever  may   be  thought  of  these  opinions,  it  is 
very  certain  that  this  particular  easement  of  the  right  to  window 
lights,  can  only  be  claimed  as  accessory  to  a  tenement.     With 
that  tenement  the  easement  is  transferred  ;  and  when  that  tene 


NATURE   OF  THE  RIGHT  TO  LIGHT  AXD   AIR.  517 

ment   is   permanently   destroyed,   the   easement   ceases   to   exist 
{Latham  on  Window  Ligfits,  8). 

The  right  to  window  lights  is  altogether  a  different  affjiir  froir 
the  right  sometimes  claimed  of  prospect  or  the  view  of  external 
objects.  The  English  law  has  never  regarded  prospect  as  a  right 
capable  of  being  annexed  to  a  tenement  as  an  easement,  and  cer- 
tainly it  has  never  been  so  considered  by  the  American  law.  Its 
enjoyment  can  only  be  secured  by  express  covenant;  and  the 
burden  of  this  will  not  run  with  the  servient  tenement.  Said  Wray, 
C.  J.,  in  a  very  old  English  case :  "  That  for  prospect,  which  is  a 
matter  only  of  delight  and  not  of  necessity,  no  action  lies  for 
stopping  thereof,  and  yet  it  is  a  great  recommendation  of  a  house 
if  it  has  a  long  and  large  prospect"  {Aldred^s  Case,  9  Col-e's  IL, 
57  J);  and,  in  another  early  case,  Twisden,  J.,  said;  "  Why  may  I 
not  build  up  a  wall  that  another  man  may  not  look  into  my  yard  ? 
Prosj)ects  may  be  stopped,  so  you  do  not  darken  the  light" 
{Knoides  v.  Richards,  1  jYod.  R.,  55  ;  S.  C,  2  Ktl.  R.,  642). 
And  Lord  Ilardwicke,  in  a  case  where  the  Court  of  Chancery  was 
invoked  to  prevent  the  defendants  from  obstructing  the  plaintiffs' 
prospect,  said  :  "  You  come  in  a  very  special  and  particular  case  on 
a  particular  right  to  a  prospect.  I  know  no  general  rule  of  com- 
mon law  which  warrants  that,  or  says,  that  building  so  as  to  stop 
another's  prospect  is  a  nuisance..  Was  that  the  case,  there  could 
be  no  great  towns,  and  I  must  grant  injunctions  to  all  the 
new  buildings  in  this  towm""  {Attorney- General  v.  Doughty,  2 
Yes.,  Sen.,  R.,  45).  And  in  another  case,  the  same  eminent  Lord 
High  Chancellor  said  :  "It  is  true  that  the  value  of  the  plaintiff's 
house  may  be  reduced  by  rendering  the  prospect  less  pleasant,  but 
that  is  no  reason  for  binding  a  man  from  building  on  his  own 
ground"  {Fishmongers'  Company  v.  East  India  Covqyany,  1 
Dick.  R.,  163).  And  Lord  Chancellor  Cottenham  observed  :  "  It 
is  not,  as  is  said  in  one  ease',  because  the  value  of  the  property  may- 
be lessened,  and  it  is  not,,  as  is  said  in  another,  because  a  pleasant 
prospect  may  be  shut  out,  that  the  court  is  to  interfere ;  it  must  be- 
an injury  very  different  in  its  nature  and  its  origin  to  justify  such 
an  interference"  {Squire  v.  Campbell,  1  Mylne  &  Craig's  i?.,. 
486).  But  it  is  needless  to  cite  authorities  to  the  contrary  as 
none  can  be  found,  either  English  or  Ameriiean,.  t®'  sliow  that  ai 
right  to  prospect  can  exist,  except  by  obligation  foumled  in  per 
sonal  contract. 


518  LAW   OF    WiyDOW  LIGHTS. 

So  also  the  riglit  to  window  lights  has  no  connection  with  the 
right  sometimes  attempted  to  he  established  of  having  the   view 
from  outside  objects  within  a  window  secured  from  interruption. 
In  cases  of  this  kind  the  same  rule  applies  as  in  the  case  of  obstruct- 
ing the  view  of  external  objects.     Injury  may  be  done  to  a  tenement 
by  reason  of  the  erection  of  another  in  such  a  manner  as  to  afford 
a  view  through  the  windows  or  openings  of  the  former  or  viceversa  ; 
but  if  so,  it  is  simply  injuria  absque  damnum,  an  injury  for  which 
the  law  affords  no  remedy.      Said  Yice-chancellor  Wood  in  a 
comparatively  late  case  before  the  English  Court  of  Chancery  :  "  So 
far  as  a  man   standing  outside  the  window  would  be  prevented 
from  getting  a  view  of  the  goods  thus  exhibited,  the  case  would 
stand  on  the  same  footing  as  an  obstruction   to  light;  a  person 
must  not  cause  an  injury  in  creating  such  an   obstruction.     If  a 
shopkeeper  wished  to  show  his  goods  within  the  shop,  he  had  a 
riglit  to  the  free  access  of  light  for  the  purpose,  and  he  apprehended 
it  was  the  same  if  he  wished  to  show  the  goods  outside  by  means 
of  transparent  medium.     This,  however,  did  not  apply  to  the  pre- 
sent case ;  all  that  could  be  complained  of  was  that  persons  could 
not  see  the  goods  so  soon  as  they  might  if  the  alterations  objected 
to  had  not  been  made.     When  they  came  in  front  of  the  shop  the 
goods  would  be  seen  just  as  well  as  before.     So,  if  a  sign  were 
hung  up  in  front  of  tlie  shop,  such  as  a  pawnbroker's  balls,  wliich 
could  be  seen  from  a  long  distance,  there  was  nothing  to  prevent 
a  neighbor  building  on  his  own  ground  in  such  a  way  as  to  obstruct 
the  direct  view  of  such  a  sign  "  {Smith  v.  Deven,  35  Law.  E.,  N. 
S.,  Ch.  317).     And  in  a  case  before  Kindersley,  Y.  C,  in  which  it 
was  complained  that  the  erection  of  a  gasometer  would  shut  out 
the  view  of  the  public  from  the  plaintiff's  premises,  his  honor 
observed :  "As  to  the  ground  that  the  gasometer  will  prevent  the 
view  of  persons  in  Ann's  Place,  it  is  impossible  tliat  that  can  be  a 
ground  for  an  injunction"  {Butt  v.  Imperial  Gas-light  and  Coke 
Comiymy.^  14  WeeMy  Beporter,  508).     The  result  is  that  the  owner 
of  a  tenement  may  possess  the  right  to  window  lights,  and  yet  have 
no  power  to  prevent  erections  which  simply  interfere  with  his 
prospect,  or  which  may  impede  the  view  of  objects  in  the  windows 
by  passersby.     And  again,  the  windows  of  an  adjacent  tenement 
may  command  a  view  of  the  interior  of  the  neighboring  house, 
through  tlie  windows  of  the  latter,  so  that  the  privacy  of  the  tene- 
ment may  be  invaded  and  its  value  thereby  lessened  ;  but  for  this 


NATURE   OF  THE  RIGHT  TO  LIGHT  AXD   AIR.  519 

the  law  gives  no  remedy,  fur  it  is  not  considered  a  wrong  fur  which 
any  redress  is  given. 

It  was  observed  in  a  comparatively  recent  case  in  the  English 
Court  of  Chancery  that  "  the  court  has  nothing  to  do  with  the 
diminution  of  the  value  of  a  house  caused  by  its  windows  being 
overlooked  and  its  comparative  privacy  destroyed  "  {Johnson  v. 
Wyatt,  2  De  Gex,  J.  &  S.  R.,  18;  S.  C,  33  Law  J.  R.,  N.  S., 
(Jh.  394).  And  it  was  observed  by  Blackburn,  J.,  in  a  recent  case 
before  the  English  Court  of  Common  Pleas :  "  It  is  quite  true 
that  the  opening  of  a  new  widow  looking  into  the  grounds  of 
another  may  not  only  annoy  that  neighbor,  but  may  often  affect 
the  value  of  liis  property.  But  the  law  of  England  considers  that 
no  injury"  {Jones  v.  Tapling,  12  Com.  Bench  R.,  JV.  S.,  842; 
/S.  a',  31  Law  J.  R.,  N.  S.  C.  B.,  354).  There  is  a  form  of  words 
sometimes  found  in  the  cases  on  this  subject,  viz.,  "  invasion  of 
privacy  by  opening  windows  ;  "  but  that  is  not  treated  by  the  law 
as  a  wrong  for  which  any  remedy  is  given.  The  builder  of  a  house, 
however  close  it  may  be  to  liis  neighbor's  land,  however  numerous 
its  windows,  is  entitled  to  enjoy  whatever  light  and  air  he  can 
receive  through  its  windows,  and  no  one  can  complain  of  him  for 
60  doing. 

It  has  sometimes  been  affirmed  and  argued  that  there  is  no 
analogy  between  the  case  of  the  right  to  water  and  the  riglit  to 
light  and  air.  But  there  is  more  analogy  between  these  than  in 
the  other  cases  considered.  Indeed,  it  has  sometimes  been  judici- 
ally declared,  that  there  is  as  much  a  property  in  light  and  air  as 
in  water,  or  any  thing  else  which  one  has  a  right  to  enjoy.  Said 
Vice-chancellor  Kindersly,  in  giving  judgment  in  a  case  before 
him:  "  The  plaintiff  has  a  right  to  have  his  property  protected  ; 
and  on  principle,  the  quantity  of  light  which  he  has  a  right  to 
receive  from  his  ancient  windows,  as  a  servitude  over  a  servient 
tenement,  is  as  much  a  part  of  his  property  as  land,  or  a  house,  or 
any  other  species  of  property  "  {Martin  v.  Ileadon.,  2  Law  R. 
Eq.^  425).  It  is  nevertheless  true,  as  has  been  before  stated,  that 
light  and  air  are  things  in  which  no  permanent  property  can  be 
gained,  but  that  every  man  who  has  the  opportunity  may  make 
use  of  and  enjoy  them,  and  may  occupy  them  so  long  as  the 
opportunity  continues.  But  from  the  earliest  period  of  English 
law,  such  occupancy  when  continued  without  interruption  for  a 
specified  length  of  time,  has  drawn  with  it  a  right  to  the  continu- 


520  i^TT  OF  WINDOW  LIGHTS. 

ance  of  the  same  enjoyment,  and  has  imposed  on  the  owner  over 
whose  land  the  access  of  light  and  air  has  been  enjoyed  the  obliga- 
tion of  not  making  such  a  use  of  his  land  as  to  interfere  with 
that  enjoyment.  "  Cujus  est  solum.,  ejus  est  usque  ad  ccelurn,^''  is 
a  maxim  of  the  English  law,  which  is  also  recognized  in  this 
country ;  but  this  does  not  prevent  the  acquisition  of  the  right  to 
the  enjoyment  of  light  and  air,  under  certain  circumstances,  by 
the  adjacent  proprietor^  which  may,  to  some  extent,  interfere  with 
the  right  to  deal  with  the  land  of  the  adverse  owner  in  such  man- 
ner as  he  may  desire.  ^^ Sic  utere  tuo^  ut  alieunm  non  Icedas^^ — 
so  use  your  own  that  you  injure  not  another's  property,  is  also  a 
maxim  of  law  supported  by  the  soundest  wisdom  ;  and  this  may 
sometimes  operate  to  prevent  the  use  of  one's  premises  in  such  a 
way  as  to  deprive  the  adjacent  tenement  of  the  necessary  access 
of  light  and  air.  It  is  a  general  rule  that  the  owner  of  land  may 
use  it  according  to  his  pleasure ;  but  the  rule  is  subject  to  the 
qualification,  that  he  is  not  at  liberty  to  use  it  in  such  a  manner 
as  to  infringe  the  rights  of  others.  Upon  this  principle  the  right 
to  the  enjoyment  of  light  and  air  is  sometimes  secured.  Light 
and  air  are  usually  spoken  of  in  the  same  connection,  although 
they  are  quite  distinct  in  their  nature.  The  very  fact  of  there 
being  windows,  which  determine  the  right  in  question,  shows  that 
there  may  be  the  free  admission  of  light  without  a  particle  of  air, 
and  yet  the  right  to  sufficient  wholesome  air  has  always  been 
recognized.  Although  they  be  distinct,  and  though  the  light  in 
questions  of  this  kind  has  the  pre-eminence,  air  is  of  little  less 
consequence,  yet  the  obstruction  of  air  more  properly  comes  under 
the  head  of  nuisance,  and  is  treated  of  as  a  question  of  evidence. 
The  acquired  right  to  unimpeded  transmission  of  air  must  not  be 
confused  with  the  right  which  every  man  possesses  at  common 
law,  to  receive  the  air  which  has  access  to  his  premises  free  from 
pollution  ;  a  right  which  can  only  be  excluded  by  the  acquisition 
of  a  countervailing  easement  by  the  party  who  creates  the  nuis- 
ance ( Vide  Bliss  v.  Ballf  4  Bing.,  iV".  C,  186).  The  method  by 
which  the  right  to  window  lights  may  be  acquired  will  be 
explained  in  subsequent  chapters.  It  seems  to  be  settled  that  a 
person  living  in  the  country  has  the  same  right  to  be  protected 
from  interference  with  his  light,  as  an  individual  occupying  a 
tenement  in  towns  and  cities ;  whether  a  house  is  in  a  city  or  in 
the   country,  or  indeed,    wherever  it   may  be,  the  right  of  the 


BOW  THE  BIGHT  IS  ACQUIRED.  521 

inhabitant  to  the  comfortable  and  usual  enjoyment  of  it  is  the 
same. 


CHAPTER  XLY. 

THE    METHODS   BY    WHICH    THE    RIGHT    TO    WINDOW  LIGHTS    MAY   BE 

ACQUIRED THE    ENGLISH    AUTHORITIES    UPON    THE    SUBJECT,    AND 

THE  ENGLISH    PRESCRIPTION  ACT. 

According  to  the  English  policy,  the  right  to  window  lights 
may  be  acquired  in  three  different  ways,  by  occupancy,  by  express 
agreement,  and  by  implied  agreement.  The  modern  English  doc- 
trine on  the  subject  of  lights  has  never  been  fully  sanctioned  in 
the  American  States,  and  yet  it  will  be  impossible  to  obtain  a  cor- 
rect view  of  the  subject  as  administered  here,  without  a  full 
understanding  of  the  general  tenor  of  the  English  authorities. 
Indeed,  the  leading  principles  which  govern  the  subject  in  Great 
Britain,  are  entirely  applicable  here,  and  must  be  well  understood 
in  order  to  determine  similar  cases  arising  in  this  country.  The 
American  authorities  upon  the  subject  will  be  considered  in  sub- 
sequent chapters. 

The  methods  by  which  the  right  to  window  lights  may  be 
acquired  in  England  are  stated  in  a  few  words  by  Lord  Hard- 
wicke  in  a  case  before  the  English  Court  of  Chancery,  where  he 
says :  "  If  the  house  were  built  on  the  old  foundation,  it  would 
entitle  the  plaintiffs'  to  their  lights  as  an  ancient  messuage ;  but 
if  on  the  new  foundation,  then  the  party  must  show  a  new  agree- 
ment, or  something  to  import  one  "  {The  Fishmangei's'  Company 
V.  The  East  India  Company,  1  JDicTc.  7?.,  163).  And  again,  in 
another  case :  "  Whoever  comes  into  this  court,  on  such  a  right, 
must  found  it  either  on  defendant's  building  so  as  to  stop  ancient 
lights,  for  which  he  has  prescription  (notwithstanding  that  he 
must  lay  a  particular  prescription),  or  else  on  some  agreement, 
either  proved,  or  reasonable  prescription  thereof"  {Mo/Ti's  v. 
Lessees  of  Lord  Berkeley,  2  Ves.,  Sen.,  B.,  452). 

The  first  in  the  division  then  is,  the  acquisition  of  the  right  by 
occupancy,  and  this  branch  of  the  sul)ject  has  been  elaborately 
considered  by  the  English  courts,  and  the  doctrine  inculcated,  with 
66 


522  ^^^   Oi^   WINDOW  LIGHTS. 

some  qualification,  has  been  expressly  sanctioned  by  act  of  parlia- 
ment. The  sections  of  the  act  which  relate  to  the  acquisition  of  the 
right  to  window  lights  are  as  follows :  "  Where  the  access  and  use  of 
light  to  and  for  any  dwelling-house,  workshop  or  other  building 
that  have  been  actually  enjoyed  therewith  for  the  full  period  of 
twenty  years,  without  interruption,  the  right  thereto  shall  be 
deemed  absolute  and  indefeasible,  any  local  usage  or  custom  to 
the  contrary  notwithstanding,  unless  it  shall  appear  that  the  same 
was  enjoyed  by  some  consent  or  agreement  expressly  made  or 
given  for  that  purpose  by  deed  or  writing.  Each  of  these  respective 
periods  of  years  hereinbefore  mentioned  shall  be  deemed  and  taken 
to  be  the  period  meant  before  some  suit  or  action,  wherein  the 
claim  or  matter  to  which  such  period  may  relate,  shall  have  been 
or  shall  be  brought  into  question ;  and  no  act  or  other  matter  shall 
be  deemed  to  be  an  interruption,  wnthin  the  meaning  of  the  statute, 
unless  the  same  shall  have  been  or  shall  be  submitted  to  or 
acquiesced  in  for  one  year  after  the  party  interrupted  shall  have 
had  or  shall  have  notice  thereof,  and  of  the  person  making  or 
authorizing  the  same  to  be  made  "  {^'tat.,  2  &  3  Will.,  4,  c  71,  §§ 
3,  4).  This  act  was  passed  in  the  year  1832,  and  is  still  in  force. 
The  object  of  the  act  was  to  shorten  the  period  of  prescription, 
and  to  make  possession  a  bar  or  title  of  itself,  instead  of  having 
recourse  to  the  intervention  of  a  jury  to  make  it  so.  Prior  to  the 
passage  of  the  act  the  enjoyment  of  lights  witli  the  party's  acqui- 
escence for  twenty  years  was  regarded  as  such  decisive  presumption 
of  a  right  by  grant  or  otherwise,  that,  unless  contradicted  or 
explained  the  jury  were  required  to  believe  it ;  but  no  length  of 
time  could  be  said  to  be  an  absolute  bar  like  a  statute  of  limitation, 
though  it  was  considered  a  presumptive  bar  which  ought  to  go  to 
a  jury.  Time  immemorial  itself  is  only  presumptive  evidence 
( Vide  Darwin  v.  Upton,  2  Wms\  Saund.  R.,  175,  h,  c).  But 
since  the  passage  of  the  act  of  1832  the  right  to  window  lights 
acquired  by  occupancy  has  become  a  matter  juris  positivi  depend- 
ing on  positive  enactment,  and  is  no  longer  to  be  rested  on  any 
supposed  presumption  of  grant  or  fiction  of  a  license. 

Said  Lord  Westbury,  C,  in  a  celebrated  case  before  the  English 
House  of  Lords  :  "  It  is  material  to  observe  that  the  right  to  what 
is  called  an  ancient  light  now  depends  upon  positive  enactment. 
It  is  matter  ju?'is  positivl  and  does  not  require,  and  therefore 
ought  not  to  be  rested  on  any  presumption  of  grant  or  fiction  of 


now  THE  RIGHT  IS  ACQUIRED.  523 

a  licensG  having  been  obtained  from  the  adjoining  proprietor. 
This  observation  is  material,  because  I  think  it  will  be  fuund  that 
error  in  some  decided  cases  has  arisen  from  the  fact  of  the  courts 
treating  the  right  as  originating  in  a  presumed  grant  or  license."' 
And  said  Lord  Chelmsford  in  the  same  case :  "  The  courts  of  law 
formerly  held  that  where  there  had  been  an  uninterrupted  use  of 
lights  for  twenty  years,  it  was  to  be  presumed  that  there  was  some 
grant  of  them  by  the  neighboring  owner,  or,  in  other  words,  that 
he  had  by  some  agreement  restricted  himself  in  the  otherwise  law- 
ful employment  of  his  own  land.  The  Prescription  Act  turned 
tins  presumption  into  an  absolute  right,  founded  upon  user  on  one 
side  and  acquiescence  on  the  other.  It  was  argued  that  under  the 
act  the  right  to  the  enjoyment  of  lights  was  still  made  to  rest  on 
the  footing  of  a  grant ;  this  position  seems  to  me  to  be  contrary 
to  the  express  words  of  the  statute.  *  *  *  By  the  Prescrip- 
tion Act,  then,  after  twenty  years'  user  of  lights  the  ow' ner  of  them 
acquires  an  absolute  and  indefeasible  right  which  so  far  restricts 
the  adjoining  owner  in  the  use  of  his  own  property  that  he  can  do 
nothing  upon  his  premises  which  may  have  the  effect  of  interrupt- 
ing them"  {Tapling  v.  Joiies,  11  House  of  L.  Cas.,  290;  S.  C, 
3i  Law  J.  i?.,  K  S.,  C.  P.,  342).  The  result  is,  that  under  the 
English  Prescription  Act  twenty  years  uninterrupted  enjoyment 
of  window  lights  (unless  such  enjoyment  be  had  under  a  written 
agreement),  confers  an  absolute  and  indefeasible  right  to  them, 
without  regard  to  the  circumstance  that  the  neighboring  premises 
have  been,  during  a  part  or  the  whole  of  that  period,  in  the  occu- 
pation of  a  tenant  for  life  or  years,  or  that  the  owner  of  the  inheri- 
tance was  ignorant  of  the  user,  or  that  he  was  not  capable  of 
granting  an  easement  so  as  to  bind  his  successors.  The  right  to 
window  lights  may  now  (as  the  enjoyment  need  not  now  be  of 
right)  be  gained,  not  only  without  the  consent,  but  also  without  the 
knowledge  of  the  servient  owner.  And  the  decisions  show  that  the 
right  to  window  lights,  when  once  acquired,  is  acquired  against  all 
the  world  {Vide  J^reioen  v.  PAilq^s,  11  Com.  Bench  R.,  N.  S.^ 
455  ;  Jones  v.  Tapling^  12  ih.^  853).  But  there  are  certain  condi- 
tions which  must  be  complied  with  in  order  that  the  enjoyment 
may  be  of  a  character  capable  of  conferring  the  right.  The  first 
of  which  is  that  the  enjoyment  must  be  had,  during  the  whole 
period  required  by  the  statute,  in  the  character  of  an  easement 
distinct  from  the  land  over  which  it  is  had,  and  on  which  it  ia 


524  LAW  OF   WLXDOW  LI G WIS. 

Bought  to  impose  the  easement  {^Ilarhridge  v.  Warwuik.,  3  Excheq 
Ji.,  552).  The  second  of  these  conditions  is  that  it'  it  appear  that 
tlie  access  of  h'ght  was  enjoyed  by  some  consent  or  agreement 
expressly  made  or  given  for  that  purpose  by  deed  or  writing,  then 
by  the  terms  of  the  statute,  the  enjoyment  will  not  be  converted 
into  a  right  after  the  expiration  of  the  twenty  years.  The  terms 
of  the  statute  are  very  plain,  and  yet  in  one  case  at  nisi prius,  in 
which  the  access  of  light  had  been  enjoyed  for  more  than  twenty 
years,  under  a  permission  verbally  given  by  the  person  having  the 
right  to  obstruct  it,  and  rent  had  been  paid  in  acknowledgment 
of  that  permission,  it  was  argued  that  no  easement  was  acquired ; 
but  the  court  overruled  the  objection  {^^layor  of  London  v.  The 
Pewterers'  Company.,  2  Mood.  &  Hob.  7?.,  409). 

The  third  condition  referred  to  is,  that  the  access  of  light  shall 
have  been  actually  enjoyed  for  the  full  period  of  twenty  years 
without  interruption.  The  interruption  which  will  prevent  the 
maturing  of  the  right  under  the  statute,  must  be  an  obstruction 
by  the  act  of  some  other  person  than  the  claimant,  not  a  cessation 
by  him  of  his  own  accord.  It  was  argued  in  one  case  that  the 
payment  of  rent  under  a  parol  agreement  for  the  user  of  lights 
was  such  an  interruption  of  the  enjoyment  as  to  defeat  the  acqui- 
sition of  a  prescriptive  right  under  the  act.  But  the  Court  of 
Exchequer  Chamber  decided  against  the  position  {Plasterers' 
Company  v.  The  Parish  Clerks*  Company,  6  Excheq.  P.,  635 ; 
and  vide  Gale  v.  Abbott,  8  Jur.,  If.  S.,  987;  Bennison  v.  Cart- 
wright,  33  Zato  J.  P.,  ]V.  S.,  2  B.,  137).  And  it  has  been  held 
by  the  House  of  Lords,  that  a  statutory  title  to  the  right  to  win- 
dow lights  may  be  gained  by  enjoyment  for  nineteen  years  and  a 
portion  of  a  year  followed  by  an  interruption  for  the  remaining 
portion  of  the  last  year  {Flight  v.  Thomas,  11  Adolph.  <&  Ell., 
P.,  688;  S.  C,  8  Clark  &Finnelly's  P.,  231). 

The  last  condition  is,  that  the  prescribed  number  of  years  dur- 
ing which  the  easement  was  enjoyed  were  the  years  next  before 
the  action  is  brought.  This  is  required  by  the  terms  of  the  stat- 
ute in  order  that  the  right  may  be  acquired.  It  has  been  held 
that  the  twenty  years'  enjoyment  before  any  suit  or  action  in 
which  the  plaintiff's  claim  to  •  light  and  air  is  brought  in  question 
is  sufHcient  to  confer  the  statutory  right,  and  not  of  necessity 
twenty  years's  enjoyment  before  the  suit  or  action  then  in  pro 
gress  {Cooper  v.  Ilulbuck,  12  Com.  Bench  P.,  N.  S.,  470).     But) 


HOW  THE  RIGHT  IS  ACQUIRED.  525 

to  support  a  claim  to  the  statutory  right,  eujuyineut  during  the 
whole  period  prescribed  by  the  statute  must  be  proved ;  and  it  has 
been  held  not  allowable  for  a  jury  to  infer  enjoyment  for  the 
whole  period  from  proof  by  the  claimant  of  enjoyment  for  a  part 
of  the  period  {Bailey  v.  Aj>pleijard,  8  AdolpL  (&  EU.  i?.,  161, 
note  at  page  778). 

The  words  in  the  statute,  "  any  local  usage  or  custom  to  the 
contrary  notwithstanding,"  doubtless  refer  especially  to  the  cus- 
tom of  the  city  of  London  prior  to  the  passage  of  the  act,  accord- 
ing to  which,  the  owner  of  any  house  within  the  city  was  entitled 
to  raise  it  or  to  build  on  its  site  any  heiglit  he  pleased,  notwith- 
standing that  by  so  doing  he  might  obstruct  his  neighbor's  ancient 
lights.  This  custom  had  been  recognized  and  allowed  to  govern 
the  question  of  light  and  air  in  the  city  of  London  from  a  very 
early  period  (  Vide  Hughes  v.  Keene,  Yelverton's  i?.,  215).  At 
the  time  of  the  decision  of  Hughes  v.  Keene,  which  was  about 
the  time  of  the  reign  of  Queen  Elizabeth,  the  custom  of  London 
appears  to  have  been  almost  identical  with  the  common  law.  By 
the  custom  of  London,  at  that  period,  the  existence  of  a  building 
prevented  the  imposition  by  prescription  of  any  obligation  on  tiie 
owner  of  that  building  to  refrain  from  interfering  with  the 
enjoyment  of  window  lights  by  his  neighbor.  In  one  case  before 
the  King's  Bench,  the  recorder  of  London  appeared,  and  certified 
ore  tenus  that  there  was  an  ancient  custom  in  the  city  of  London, 
that  a  person  miglit  increase  the  height  of  his  house^  or  build  upon 
its  ancient  foundations,  though  he  thereby  obstructed  his  neigh- 
bor's ancient  lights,  but  that  custom  did  not  extend  to  iinyerectio7i 
or  luilding  {Plutnmer  v.  Bentham,  1  Burrow''s  B.,  248).  The 
custom  was  held  to  be  confined  to  cases  where  all  the  tiice  walls 
of  the  old  foundations  belonged  to  the  person  claiming  the  benefit 
of  the  custom  {Shadwell  v.  Hutchinson^  3  Car.  &  Payne's  B., 
615).  The  custom  remained  until  it  was  swept  away  by  the  stat- 
ute, and  now  the  city  of  London  seems  to  be  on  the  same  footing, 
as  respects  the  right  to  window  lights  as  other  cities  in  the  King- 
dom (  Vide  The  Salterns  Company  v.  Jay^  3  Queen^s  Bench  B.^ 
109;  Trnscott  v.  The  Merchant  Taylors^  Company,  11  Fxeheq, 
B.,  855  ;  Tates  v.  JacA;  1  Law  B.,  Ch.  295 ;  S.  C,  35  law  J. 
B.,  ]V.  S.,  Ch.  539  ;  Bent  v.  The  Auction  Mart  Company,  2  L. 
B.  Eg.,  238 ;  S.  C,  35  Law  B.,  N.  S.,  Ch.  555). 

The  second  method  by  which  the  rigiit  to  window  lights  may 


52G  -^^1^''   ^^    WIXDOW  LIGHTS. 

be  acquired,  according  to  the  division  indicated,  is  by  express 
agreement,  and  the  authorities  upon    this   point  are   applicable, 
both   in   England   and   in    the  American    States.      It   has   been 
before  observed  that  the  right  to  window  lights  is  an  easement, 
and  it  is  pertinent  to  remark  here  that  an  easement,  like  other 
corporeal  hereditaments,  can  be  created  only  by  an  instrument 
under  seal,  or,  in    other   words,  by  a   grant.     This   doctrine   is 
supported  by  a  long  series  of  authorities,  a  few  only  of  which 
need  be  cited  {Bradley   v.   QUI,  1   Lutwyche's  R.,  69;  Fenti- 
man  v.  Smith,  4  East's  E.,  107  ;  Rex  v.  Inhabitants  of  Hordon- 
on-the-Hill,  4  Maule  <&  Selw.  R.,  562;   Bryan  v.   Whitlee,  8 
Barn.  &  Ores.  R.,  288;  S.   C,  2  Man.  &  Ry.  R.,  318  ;  Cooker 
V.  Cowper,  1  Cromp.,  Mees.  <&  Ros.  R.,  418  ;  Hewliiis  v.  Shipjpam, 
5  Barn.  <&   Cress.  R.,  221 ;  S.    C,  7  DowUng  &  Ryland's  R., 
783;    Wood  v.  Leadhetter,  13  Mees.   cfe    Welsh.    R.,    838.)     The 
courts  of  the  State  of  New  York  have  held  that  an  easement  is 
an  interest  in  land,  within  the  Revised  Statutes  of  the  State,  and 
cannot  be  created  without  a  conveyance  in  writing  {Iloughtailmg 
V.  Houghtailing  5  Barh.  R.,  379),  or,  in  some  of  the  cases,  it  is 
declared  that  an  easement  is  a  permanent  interest  or  privilege  in 
the  land  of  another,  and  must  be  founded  upon  grant,  or  upon 
prescription,  which  presupposes  a  grant  {Mumford  v.   Whitney, 
15  Wend.  R.,  380  ;  Brundage  v.  Warner,  2  IliWs  R.,  145  ;  Boyer 
V.  Brown,  7  Barh.  R.,  80).     This  is  the  general  rule  in  respect 
to  easements,  and  an  uninterrupted  enjoyment  of  an  easement  for 
twenty  years,  is  presumptive  evidence  of  a  grant  of  it  {Trvin  v. 
Fowler,  5  Roh.  R.,  482;  Flora  v.   Carheau,  38  N'.   Y.  R.,  111). 
But  it  will  appear  hereafter  that  the  doctrine  of  the  prescriptive 
right  to  window  lights  is  not  fully  recognized  by  the  courts  of  the 
State  of  New  York,  although  the  rule  that  the  right  to  window 
lights,  by  express  agreement,  must  be  by  deed,  is  universal  in  its 
application,  perhaps. 

The  English  courts,  however,  have  held  that,  although  at  law 
an  easement  cannot  be  created  without  a  deed  under  seal,  ;yet, 
when  persons  have,  either  by  express  covenant,  or  by  their  tacit 
acquiescence  in  the  creation  of  such  a  right,  induced  others  to 
incur  expense,  such  persons  will  be  restrained  by  a  court  of  equity 
from  afterward  depriving  them  of  the  benefit  of  their  expenditure 
by  insisting  on  the  want  of  a  legal  title.  And  this  doctrine  has 
been  applied  in  cases  of  window  lights  {Davies  v.   Marshall,  1 


HOW  THE  RIGHT  IS  ACQUIRED.  527 

Drury  &  Smale^s  E.,  557 ;  Cotching  v.  JSassett,  32  Beav.  i?., 
101 ;  S.  C,  32  Zaw  J.  JR.,  iV".  S.,  CL  286).  In  the  case  of  window 
lights,  however,  it  is  probable  that  mere  tacit  acquiescence  would 
not  bind  the  owner  of  the  adjoining  premises,  any  more  in  England 
than  in  the  American  States.  The  general  rule,  then,  is  that  in 
the  acquisition  of  window  lights  by  agreement  at  law,  the  right 
must  be  created  by  deed,  and  the  deed  must  be  in  the  form  of  a 
grant,  in  order  that  the  obligation  may  be  binding  at  law  upon  all 
future  owners  of  the  servient  tenement.  It  must  be  borne  in 
mind,  however,  that  it  is  not  necessary  to  use  any  particular  form 
of  words  in  order  to  constitute  a  grant.  A  deed,  which  is  in  form 
a  covenant,  may  operate  as  a  grant.  This  will  be  the  case  where, 
upon  the  instrument,  an  intention  appears  to  confer  a  right  which 
will  affect  the  land  of  the  covenantor,  and  the  right  intended  to 
be  conferred  is  one  capable  of  being  made  the  subject  of  a  grant, 
as  an  easement.  The  legal  rule  is  that  the  burden  of  a  covenant 
does  not,  except  in  cases  between  landlord  and  tenant,  run  with 
the  land,  and  hence  the  necessity  of  a  grant  in  case  of  window 
lights.  But  no  particular  form  of  words  is  necessary  to  effect  the 
the  grant;  any  words  which  clearly  show  the  intention  to  give  the 
right  are  sufficient  to  effect  that  purpose  {Eowbotham  v.  Wilson, 
8  House  of  L.  Cas.  348).  Upon  this  principle,  it  would  seem 
that  from  a  covenant  by  the  owner  of  the  adjoining  land,  that  he 
would  not  in  any  way  obstruct  the  access  of  light  and  air  to  the 
windows  of  his  neighbors's  tenement,  would  be  implied  a  grant  from 
him  to  his  neighbor  of  the  right  to  window  lights  over  his  land, 
and  it  may  be  remarked  that  in  practice  express  grants  of  the 
right  to  window  lights  are  not  often  met  with.  Express  covenants 
to  refrain  from  interfering  with  a  neighbor's  enjoyment  of  light 
and  air  are  also  very  rare.  Their  place  has  been  supplied  by 
covenants  by  a  man  to  refrain  from  using  his  own  land  in  such  a 
way  as  to  interfere  with  the  free  access  of  light  and  air,  and  such 
covenants  are  sufficient  as  a  grant  of  the  right. 

The  third  and  last  method  by  which  the  right  to  window  lights 
maybe  acquired, according  to  the  division  indicated,  is  by  implied 
agreement,  and  this  important  mode  of  acquisition  of  the  right 
falls  into  two  divisions,  in  the  first  of  which  there  is  an  implied 
grant  of  the  right  to  window  lights,  arising  from  the  principle  that 
a  man  cannot  derogate  from  his  grant,  and  in  the  second  there  is 
an  implied  grant  of  the  right  arising  from  the  presumed  intention 


528  LAW  OF   WINDOW  LIGHTS. 

of  the  person  who  was  the  owner  of  two  tenements,  one  of  which 
enjoyed  the  right  of  window  lights  over  the  other,  previously  to 
their  severance.  This  is  the  doctrine  prevalent  in  Great  Britain. 
How  far  it  is  recognized  in  the  American  States  will  appear  by  a 
consideration  of  the  authorities  in  a  subsequent  chapter. 

The  English  decisions  are  very  numerous  and  elaborate  upon 
this  branch  of  the  subject,  but  a  brief  reference  to  them  only  will 
be  necessary  in  order  to  understand  the  law  as  administered  in 
that  kingdom.  And  first,  as  to  the  cases  in  which  it  is  held  that 
the  implied  grant  arises  from  the  principle  that  a  grantor  cannot 
derogate  from  his  grant.  The  oldest  case  found  in  the  reports  upon 
this  point,  was  one  in  which  it  appeared  that  A  having  built  a  house 
let  it  to  B,  and  the  rest  of  the  ground  to  C ;  that  C  obstructed  the 
lights  of  the  house,  and  B  brought  an  action  against  him  for  so 
doing.  The  court  held  that  C  claiming  the  land  from  the  builder 
of  the  house,  could  not  obstruct  the  lights  of  the  house  any  more 
than  the  builder  himself  could,  and  that  the  builder  could  not 
derogate  from  his  own  grant,  for  the  lights  were  a  necessary  and 
essential  part  of  the  house.  But  it  was  held  that  had  the  land 
been  sold  before  the  house,  and  the  house  afterward,  the  vendee 
of  the  land  might  stop  the  lights,  although  the  court  was  not 
unanimous  on  this  point.  The  result  was  that  the  action  was  sus- 
tained {Palmer  v.  Fletcher^  1  Siderfinh  E.,  167 ;  S.  C,  1  Levinz' 
i?„  122).  In  a  later  case  before  the  same  court,  the  doctrine  of 
the  case  of  Palmer  v.  Fletcher  was  assented  to,  that  the  grantor 
or  one  claiming  under  him,  cannot  obstruct  the  access  of  light  to 
the  house  sold  ;  though,  as  the  defendant  in  the  case  was  a  stranger, 
it  was  held  that  the  principle  did  not  apply  {Bowery  v.  Pope,  1 
Leonard's  P.,  168,  and  vide  Cox  v.  Prt/or,  1  Vent.  P.,  237,  239). 

About  the  year  1700,  Holt,  Ch.  J.,  said  in  a  case  before  the  Eng- 
lish Court  of  King's  Bench :  "  If  a  man  have  a  vacant  piece  of 
ground  and  build  thereon,  and  that  house  has  very  good  lights, 
and  he  lets  this  house  to  another ;  and  after  he  builds  upon  a  con- 
tiguous piece  of  ground,  or  lets  the  ground  contiguous  to  another, 
who  builds  thereupon  to  the  annoyance  of  the  lights  of  the  first 
house,  the  lessee  of  the  first  house  shall  have  an  action  upon  this 
case  against  such  builder,  etc.,  for  the  first  house  was  granted  to 
him  with  all  the  easements  and  delights  then  belonging  to  it " 
{Posewell  V.  Pryor,  6  Modern  P.,  116).  And  again  it  was  said 
by  the  Court  of  Queen's  Bench :    "  If  a  man  build  next  to  a 


JIOW   TUE  RIGHT  IS  ACQUIRED.  529 

vacant  piece  of  grouiid  (»f  his  own,  and  then  sell  the  new  house, 
keeping  the  ground  in  his  own  hands,  he  cannot  build  upon  the 
Avaste  ground  so  as  to  stop  the  lights  of  the  house  ;  for  by  sale  o£ 
the  house,  all  the  lights  and  all  necessaries  to  make  them  useful 
pass;  for  by  the  sale  of  the  house,  all  the  conveniences  it  has  will 
pass;  and  as  he  himself  cannot  build  to  the  prejudice  of  the  new 
house  sold,  so  canm.'t  the  lessee  of  the  vacant  ground  do  it ;  but 
if,  in  that  case,  he  had  sold  the  vacant  ground  without  reserving 
the  benefit  of  the  lights,  the  court  doubted  in  that  case  that  the 
vendee  might  build  so  as  to  stop  the  lights  of  his  vendor,  because 
he  parted  with  the  ground  without  reserving  the  benefit  of  the 
lights  "  {Tenant  v.  Goldwin,  6  Mod.  E.,  314).  And  subsequently 
the  result  of  tiic  cases  was  stated  :  "  That  no  man  can  derogate 
from  his  own  grant ;  therefore,  if  I  have  a  house  with  certain 
lights  in  it  and  land  adjoining,  and  I  sell  the  house  but  keep  the 
land,  neither  I  nor  any  one  claiming  under  me,  can  obstruct  the 
lights  by  building  on  the  land;  for  by  selling  the  house  I  sell  the 
easement  in  the  land  also.  So,  semble,  if  I  sell  the  land  and  keep- 
the  house,  my  vendor  cannot  obstruct  the  light  by  building  on  the 
land"  {Pomfret  v.  Ricroft,  1  Wins' .  Saund.  B.,  323,  note  I). 
Although  these  are  very  old  cases,  the  later  authorities  are  in 
accord  with  them.  Within  the  last  fifteen  years,  in  a  case  in  the 
High  Court  of  Chancery  of  England,  in  which  the  plaintiff  had 
taken  premises  in  which  to  cany  on  his  trade  as  a  diamond  mer- 
chant, Stuart,  Vice-chancellor,  said:  "There  appears  to  be  no 
sound  principle  on  which,  when  the  demise  of  the  house  is  to  a 
person  known  to  sustain  such  a  character  as  that  any  diminution 
of  the  lights  Avould  disturb  his  enjoyment  in  that  character,  the 
reversioner  can  be  allowed  to  withdraw  or  obstruct  anything 
necessary  to  his  enjoyment  of  the  demised  property  in  that  char- 
acter "  {Ilerz  V.  The  Union  Bank  of  London.,  2  Gifford's  R.,  686, 
and  vide  Jacomh  v.  Knight,  32  Law.  J.  R.,  JV.  S.,  Ch.  601). 

In  a  word,  the  authorities  clearly  settle  the  proposition,  that 
T^here  the  owner  of  two  properties,  one  of  which  has  enjoyed  at 
continuous  and  apparent  right  to  window  lights  over  the  other,, 
disposes  of  the  window  property  M-hich  has  enjoyed  that  right,, 
there  is  an  implied  grant  bv  him  of  the  right  to  the  window- 
lights  which  has  been  enjoyed  therewith.  So  that  if  he  parts  with' 
a  tenement  which  has  enjoyed  the  right  to  window  lights  over 
another  part  of  his  property,  he,  and  consequently  those  claiming 
67 


530  ^-411'   OF   WIXDUW  LIGHTS. 

under  hini,  are  bound  bj  an  implied  grant  of  the  right,  and  are 
debarred  from  in  any  way  using  the  part  of  the  property  retained 
so  as  to  intei'fere  with  that  right.  And  it  would  seem  from  the 
authorities  that  this  implied  grant  results  from  the  general  princi- 
ple that  a  grantor  cannot  derogate  from  his  grant.  This  doctrine 
is  well  settled  by  the  law  of  England,  and  it  appears  to  be  reasona- 
ble in  any  country ;  certainly  as  between  the  grantor  and  grantee 
personally,  and  others  having  actual  notice  of  the  order  of  trans- 
fer, and  the  situation  of  the  property  at  the  time  of  the  first  grant. 
The  principle  is  considered  also  to  apply  where  the  owner  of  the 
two  properties  parts  with  them  at  the  same  time,  or  at  times  so 
near  as  to  be  virtually  the  same.  Said  Tindal,  Ch.  J.,  in  deliver- 
ing judgment  in  a  case  in  the  English  Court  of  Common  Bench  : 
"  It  is  well  established  by  the  decided  cases,  that  where  the  same 
person  possesses  a  house  having  the  actual  use  and  enjoyment  of 
certain  lights,  and  also  possesses  the  adjoining  land,  and  sells  the 
house  to  anuther  person  ;  although  the  lights  be  new,  he  cannot, 
nor  can  any  one  who  claims  under  him,  build  upon  the  adjoin- 
ing land  so  as  to  obstruct  or  interrupt  the  enjoyment  of  those 
lights.  And  in  the  present  case,  the  sales  to  the  plaintifi"  and 
defendant  being  sales  by  the  same  vendor,  and  taking  place  at 
one  and  the  same  time,  we  tliink  the  rights  of  the  parties  are 
brought  within  the  application  of  this  general  rule  "  {Swanhorough 
V.  Coventry,  9  Bing.  R.,  305;  S.  C,  2  Moore  c&  Scott's  E.,  362; 
and  vide  Compton  v.  Richards,  1  Price''s  R,,  27).  But,  to  come 
within  the  principle  of  the  cases,  the  right  to  the  window  lights 
must,  at  the  time  of  the  disposition  of  the  property,  be  continuous 
and  apparent.  It  has  been  held,  where  at  the  time  of  the  sale  of 
the  two  tenements  there  were  openings  "  wholly  of  an  uncertain 
chara<iter,  which  would  have  been  equally  aj^propriate  for  a  door, 
a  window,  or  any  other  purpose  to  which  such  an  opening  might 
possibly  be  applied,"  no  easement  can  arise  in  respect  thereof 
{Glave  V.  Harding,  27  Law  J.  R.,  iT.  S.  Ex.,  286 ;  and  vide 
Riviere  v.  Bower,  1  Ryan  &  Moody"* s  R.,  24 ;  White  v.  Bass,  7 
Hurlstone  ds  Normayi's  R.,  722 ;  Pyer  v.  Carter,  1  ^J.,  916  ;  S. 
C,  26  Law  J.  R.,  N.  S.  Ex.,  258  ;  Suffield  v.  Brown,  33  Law  J. 
R.,  iV.  S.,  Ch.  249).  It  seems  that  if  a  person  having  a  house  on 
his  land,  the  M'indows  of  which  have  existed  for  more  than  twenty 
years,  even  sells  a  portion  of  the  land,  without  reservation^  th« 
jpurchaser  may  erect  any  buildings  he  pleases  upon  the  land  so 


THE  AMERICAN  DOCTRINE.  531 

sold  to  liiiri,  however  much  they  may  interfere  with  the  liglits  of 
the  vendor's  house.  This  has  been  declared  to  be  the  hiw,  although 
it  was  admitted  that  the  law,  if  carried  to  an  extreme,  would  in 
some  cases  produce  great  and  startling  injustice  {Curriers'  Com- 
pany V.  Corhett,'^  Drewry  &  SmaZe's  7?.,  355;  and  vide  Richards 
V.  Rose,  9  Exch.  i?.,  218  ;  Murchir  v.  Blaek,  11  Jur.  N.  S.,  608). 
The  other  branch  of  cases  in  which  tlie  right  to  window  lights 
arises  by  implied  grant  under  the  English  law,  is  that  in  whicli 
the  owner  of  two  tenements,  one  of  which  enjoys  the  right  over 
the  other,  disposes  of  them  simultaneously  without  any  valuable 
consideration  to  two  different  persons,  either  by  his  will  or  by  a 
voluntary  conveyance.  In  this  case  the  dominant  tenement  will 
retain  its  easement,  or  rather  a  similar  easement  wall  Ije  created 
de  novo  in  its  favor,  provided  that  such  easement  be  continuous 
and  apparent;  that  is  to  say,  which  is  apparent  upon  a  careful 
inspection  by  a  person  ordinarily  conversant  with  such  matters. 
The  doctrine  of  a  grantor  not  being  able  to  derogate  from  his 
grant  does  not  affect  these  cases,  as  here  all  that  the  donee  takes 
is  from  the  free  bounty  of  the  donor,  and  this  bounty  is  to  be 
measured  by  his  intentions  either  expressed  or  presumed  in  the 
absence  of  expression.  The  rule  involved  in  this  branch  of  the 
subject  cannot  be  illustrated  by  cases  where  the  exact  right  to 
window  lights  w^as  in  question,  because  but  few  such  cases  seem  to 
have  been  before  the  courts.  But  the  doctrine  is  well  sustained 
upon  general  principles  relating  to  easements,  and  the  authorities 
upon  that  subject  indirectly  settle  the  soundness  of  the  position 
taken  in  this  point  (  Vide  Palden  v.  Bastard,  4  Best  <&  Smit/i's 
R.,  258 ;  Pearson  v.  Spenoer,  1  ih.,  571 ;  Latham  on  Window 
Lights,  71-74). 


CHAPTEK  XLVI. 

EULES  RESPECTING   THE  EIGHT    TO  WINDOW  LIGHTS   IN  THE  AMERICAN 
STATES  —  DECISIONS    OF  THE  COURTS  OF  NEW  YORK  AND   MASSACHU- 

sErrs  UPON  the  subject  of  light  and  air. 

The  doctrine  of  the  English  common  law  upon  the  subject  of 
light  and  air  has  never  been  fully  recognized  in  the  American 
States,  although  many  of  the  principles  upon  which  the  subject  is 


532  -^^T^'   OF   WINDOW  LIGHTS. 

treated  in  England,  are  adopted  to  the  fullest  extent  in  this 
country,  while  upon  other  points  settled  by  the  English  law,  the 
courts  of  this  country  are  by  no  means  harmonious.  When  win- 
dow lights  come  in  the  category  of  ancient  lights,  it  seems  to  be 
quite  uniformly  held  that  they  cannot  be  legally  interrupted. 
Indeed,  it  has  been  frequently  affirmed  by  the  American  judges, 
that  the  rule  that  an  action  upon  the  case  lies  for  stopping  the 
ancient  lights  of  another  is  too  well  settled  to  require  discussion 
or  authority  to  support  it.  What  shall  be  regarded  an  ancient 
light  has  been  an  nn settled  question,  although  the  authorities  at 
present  are  quite  uniform  in  holding  that  a  party  may  acquire  the 
right  to  the  free  access  of  light  to  his  house,  by  the  enjoyment  of 
that  right  for  the  same  time  in  which  an  nninterrupted  occupa- 
tion of  the  house  itself  would  ripen  into  an  absolute  title  to  the 
house ;  that  is  to  say,  in  such  a  case,  the  window  lights  enjoyed 
might  be  regarded  as  ancient.  Again  it  has  been  unqualifiedly 
affirmed  by  eminent  American  jurists,  that  every  proprietor  of 
land  has  a  natural  right  to  so  much  light  as  falls  jperjpendicnlarly 
upon  his  own  soil,  and  no  more.  His  rights  in  this  respect  would 
be  defined  by  the  legal  maxim,  cxijus  est  solum,  ejus  est  usque  ad 
Gwlu?n.  Upon  this  principle,  whatever  right  such  proprietor  may 
have  to  receive  light  laterally  over  the  land  of  others  is,  of  course, 
an  easement  or  something  equivalent  to  an  easement  ;  and  the 
same  judges  who  have  asserted  this  principle,  have  also  laid  it 
down  in  general  terms,  that  the  right  to  the  access  of  light  and 
air  over  the  adjacent  lands,  may  be  acquired  by  covenant  or  by 
prescription  if  not  by  grant,  and  which,  however  acquired,  extends 
beyond  the  limits  of  one's  own  land,  and  rests,  as  a  burden  or 
restriction,  upon  the  rights  of  the  adjoining  proprietor.  And  it  is 
assumed  to  be  abundantly  settled  that  it  is  only  where  an  owner 
has  acquired  such  an  easement  in  his  neighbor's  land  that  he  can 
have  any  protection  from  the  law  for  his  windows,  whatever  that 
neighbor  may  do  upon  his  own  land.  But  the  doctrine  of  the 
American  authorities  upon  the  subject,  can  be  best  extracted  after 
a  careful  consideration  of  the  cases  themselves.  It  is  proposed, 
therefore,  to  examine  all  of  the  leading  cases  which  have  been 
decided  by  the  courts  involving  the  right  to  window  lights,  and 
thereby  be  enabled  to  give  the  exact  state  of  the  law  upon  the 
subject  in  the  different  States. 

In  a  case  before  the  Supreme  Court  of  the  State  of  New  York 


THE  AMERICAN  DOCTltlNE.  533 

in  1835,  the  subject  of  Ii<^lit  and  air  was  incidentally  discussed, 
and  Covven,  J.,  who  delivered  the  opinion  of  the  court,  observed  : 
"Every  person  is  entitled  to  the  use  of  the  elements  in  their 
natural  purity,  and  whoever  poisons  them  or  renders  them 
unhealthy,  violates  that  right.  The  person  who  makes  a  window 
in  his  house  which  overlooks  the  privacy  of  his  neighbor,  does  an 
act  which  strictly  lie  has  no  right  to  do ;  although  it  is  said  no 
action  lies  for  it.  He  is,  therefore,  encroaching,  though  not  strictly 
and  legally  trespassing,  upon  the  rights  of  another.  He  enjoys 
an  easement,  therefore,  in  his  neighbor's  property,  which  in  time 
nvAy  ripen  into  a  right.  But  before  sufficient  time  has  elapsed  to 
raise  a  presumption  of  a  grant,  he  has  no  right,  and  can  maintain 
no  action  for  being  deprived  of  that  easement,  let  the  motive  of 
the  deprivation  be  what  it  may  ;  and  the  reason  is,  that  in  the  eye 
of  the  law  he  is  not  injured.  He  is  deprived  of  no  right,  but 
onlj^  j9^'<??'<??iY<?<^  from  acquiring  a  rigld^  without  consideration,  in 
his  neighbor's  property"  {Mahon\.  Brown,,  13  Wend.  It.,  261, 
264,  265).  But  the  same  court,  three  years  later,  held,  in  a  case 
involving  the  precise  question,  that  the  doctrine  of  presumption 
of  right  by  grant  or  otherwise  as  applied  to  the  vnndows  of  one 
person  overlooking  th£  land  of  another,  so  that  by  an  uninter- 
rupted enjoyment  for  twenty  years  the  owner  acquires  a  i-ight  of 
action  against  his  neighbor  for  stopping  the  lights  by  the  erection 
of  a  building  upon  his  own  laud,  forms  no  part  of  our  law  ;  and 
it  was  declared  that  such  a  rule  is  not  adapted  to  the  circumstan- 
ces or  existing  stiite  of  things  in  this  country.  The  case  was 
decided  in  1838,  and  Bronson,  J.,  in  delivering  the  opinion  of  the 
court,  went  into  a  learned  and  elaborate  review  of  the  authorities 
upon  the  subject,  and  declared  that  as  neither  light,  air  nor  pros- 
pect can  be  the  subject  of  a  grant,  the  proper  presumption,  if  any, 
to  be  made  in  such  a  case  is,  that  there  was  some  covenant  or 
agreement  not  to  obstruct  the  lights,  but  on  the  whole  he  was  of 
tlie  opinion  that  the  modern  English  doctrine  upon  the  subject  of 
lights  could  not  be  supported  upon  any  principle  which  can  be 
applied  here,  though  it  might  do  well  enough  in  England.  The 
learned  judge  thought  the  doctrine  could  not  be  applied  in  the 
growing  cities  and  villages  of  this  countr}^  without  working  tlie 
most  mischievous  consequences,  and  in  this  opinion,  Nelson,  Ch. 
J.,  concurred,  while  Coweii,  J.,  dissented  {Parher  v,  Foote,  19 
Wend,  it.,  309).     According  to  this  decision  the   enjoj-ment  of 


534  i^TF   OF   WLYDOW  LIGHTS. 

light  and  air,  is  not  regarded  as  adverse  or  hostile  to  any  right  of 
the  owner  of  the  adjoining  land,  and  cannot,  therefore,  become 
the  foundation  of  a  presumption  of  right  to  continue  their  use  as 
against  such  owner.     This  is  the  doctrine  of  the  opinion  of  Judge 
Bronson,  at  least,  in  which  the  Chief  Justice  concurred,  although 
the  decision  was,  that  there  should  be  a  new  trial  in  the  case, 
which  had  really  been  directed  on  another  point,  and  the  Chief 
Justice,  a   few  years   before,  in    the   ease   of  Mahon  v.  Brown, 
esteemed  the  contrary  to  be  too  well  settled  to  require  discussion, 
yet  not  deciding  the  point.     The  doctrine  of  the  case  upon  this 
point,  however^  has  been  often  referred  to  incidentally  by  judges 
in  subsequent  cases,  sometimes  with  entire  approval,  and  at  others 
with  more  doubtful  expression.     In  a  case  decided  by  the  Court 
of  Appeals   in  1854:,  not  involving  the  precise  point,  however, 
Selden,  J.,  said  :  "  In  England,  after  twenty  years  uninterrupted 
use  of  a  window,  a  right  to  its  enjoyment  is  presumed  ^  and  this 
right  the  law  will   protect.     But  the   rule   is   otherwise   in  this 
State  ;"  and  refers  to  Parker  s , Foots ^io\-  authority  {Auburn  and 
Cato  Planh  Road  Company  v.  Douglas,  9  iY.  Y.  B.,  4i4,  447): 
But  six  years  later,  Clerke,  J.,  in  the  same  court,  said  :  "  In  Par- 
ker V.  Foots  (19  Wend.,  309),  which  was  an   action  for  stopping 
lights  in  a  dwelling-house,  it  was  held,  and  clearly  upon  author- 
ity, if  the  user  is  wrongful,  if  it  is  a  usurpation  to  any  extent 
upon  the  rights  of  another,  it  is  of  itself  adverse,  and  if  acqui- 
esced in  for  twenty  years,  a  reasonable  foundation  is  laid  for  pre- 
snminff  a  g-rant"  (Hammond  v.  Zehner,  21  iV^.  Y.  i?.,  US,  120). 
And  at  the  next  term  of  the  same  high  court,  Selden,  J.,  used 
this  language  :  "It  is  well  settled,  that,  as  a  general  rule,  if  the 
owner  of  a  building  has  windows  overlooking  an  adjoining  lot, 
the  owner  of  the  latter  may  build  directly  in   front  of  the  win- 
dows so  as  entirely  to  obstruct  their  lights,  unless  they  are  shown 
to  be  ancient.     If,  however,  both  proprietors  obtained  their  title 
from  a  common  source,  the  same  grantor  having  conveyed  the 
ttjnement  with  the  windows  to  one,  and  the  ground  overlooked  to 
another,  the  windows  cannot  be  obstructed ;  and  the  reason  is, 
that  the  relative  qualities  of  the  two  tenements  must  be  considered 
as  fixed  at  the  time  of  their  severance,  each  retains,  as  between  it 
and  the  other,  the  proportion  then  visibly  attached  to  it,  and 
neither  party  has  a  right  afterward  to  change  them"  (Za;»/J>m«;» 
V.  Milks,  21  iY.    Y.  P.,  505,  511).     This  is  in  entire  harmony 


THE  AMERICAN  DOCTRINE.  53") 

n-itli  the  rule  of  the  common  law,  that  where  the  owner  of  two 
tenements  sells  one  of  tliem,  or  the  owner  of  an  entire  estate  sella 
a  portion,  the  purchaser  takes  the  tenement,  or  portion  sold,  with 
all  the  benefits  and  burdens  which  appear,  at  the  time  of  the  sale, 
to  belong  to  it,  as  between  it  and  the  property  which  the  vendor 
retains.  This  is  one  of  the  recognized  modes  by  which  an  ease- 
ment or  servitude  is  created,  and  the  principle  is  held  by  Judge 
Selden  to  apply  in  the  case  of  window  lights. 

In  1868  a  case  came  before  the  Court  of  Appeals  of  the  State 
of  New  York,  which  involved  the  effect  of  a  covenant   of  the 
owner  of  adjacent  premises  with  the  neighboring  owner,  not  to 
erect,  or  suffer  to  be  erected,  on  the  premises,  any  structure  or 
building  of  any  kind,  whereby  the  view  or  prospect  of  the  bay, 
from  any  part  of  the  dwelling-house  of  the  latter  shall  be  obstructed 
or  impaired  in  any  manner  or  degree  whatever.     The  court  held 
that  this  gave  the  covenantee  an   easement  in  the  covenantor's 
land,  and  in  case  of  its  infraction,  a  court  of  equity  would  inter- 
pose by  injunction,  and  that  too  as  against  the  grantee  of  the  cov- 
enantor in   favor   of  the   grantee    of  the   covenantee  {Gihert  v. 
Peteler,  38  N.    Y.  i?.,   165).     When   the   case  was   before   the 
Suprem'e   Court,  Eniott,  J.,   said:    "A   covenant   or   agreement, 
restricting  the  use   of  any  lands   or   tenements   in  favor  or   on 
account  of  other  lands,  creates  an  easement  and  makes  one  tene- 
ment, in  the  language  of  the  civil  law,  servient  and  the   other 
dominant;  and  this  without  regard  to  any  privity  or  connection 
of  title  or  estate  in  the  two  parcels,  or  their  owners.     All  that  is 
necessary  is  a  clear  manifestation  of  the  intention  of  the  person  who 
is  the  source  of  title,  to  subject  one  parcel  of  land  to  a  restriction 
in  its  use  for  the  benefit  of  another ;  whether  that  other  belong 
at  the  time  to  himself  or  to  third  persons,  and  sufticient  language 
to  make  that  restriction  perpetual "  {Gihert  v.  Peteler,  38  Barb. 
i?.,  488,  514).     This  opinion  was  given  at  the  General  Term  on 
which  the  judgment  entered  in  the  case  was  set  aside,  and  a  new 
trial    granted.     But   on    the  second   trial  the  judgment  was   in 
accordance  with  the  said  opinion,  which  was  afiirmed  by  the  Court 
of  Appeals;  so  that  the  position  taken  by  Judge  Emott  has  a  very 
important  bearing   upon    the   question   of  the   right   to  window 
lights  guaranteed  by  covenant  or  agreement. 

In  1851,  the  Supreme  Court  of  the  State  of  New  York  had  tha 
question  of  the  right  to  window  lights  directly  before  it,  and  by 


536  -t^l^'    OT?'   Tr7.VJ?0TF  LIGHTS. 

two  of  the  three  judges,  the  thh-d  dissenting,  tlie  doctrine  was 
laid  down  to  the  effect,  that  the  common  law  of  England,  on  the 
subject  of  light  and  air,  as  an  easement  or  incident  to  real  estate, 
is  not  the  law  of  this  country  ;  and  it  was  declared  to  be  inappli- 
cable to  the  condition  of  this  country  when  the  State  of  New 
York  was  settled  by  the  colonists,  and  formed  no  part  of  the  law 
of  the  colony  on  the  19tli  of  April,  1775.  Upon  this  generally 
conceded  principle,  the  majority  of  the  court  held  in  the  case, 
where  it  appeared  that  the  owner  of  two  adjoining  lots  in  the 
city  of  New  York,  upon  one  of  which  was  a  building  deriving  its 
light  and  air  over  and  through  an  open  space  in  the  rear  of  the 
other  lot,  into  which  the  windows  of  the  building  opened  and 
looked,  leased  the  building  and  lot  upon  which  it  was  erected  for 
a  term  of  years,  with  its  appurtenances,  without  reserving  to 
himself  a  right  to  build  on  sucli  other  lot,  or  stop,  or  darken  the 
windows  of  tlie  building  leased,  and  afterward  built  a  house,  cov- 
ering the  whole  open  space  of  the  other  lot,  darkening  the  win- 
dows, and  excluding  the  light  and  air  from  the  building  occupied 
by  his  tenants ;  that  tlie  landlord  n)iglit  lawfully  darken  or  stop 
the  windows  by  any  erection  on  the  other  lot,  and  that  such  an 
act  was  not  in  derogation  of  his  own  grant,  and  he  could  not  be 
restrained  by  injunction  from  so  doing  {Myers  v.  Guinmel,  10 
Barl).  R.,  537).  The  correctness  of  this  decision  upon  the  state- 
ment of  the  case  in  the  report,  may  well  be  doubted.  It  would 
certainly  seem  inequitable  for  a  party  to  lease  to  another  a  tene- 
ment enjoying  the  riglit  to  light  and  air  essential  to  the  comforta- 
ble or  profitable  occupation  of  the  leasehold  premises,  and  then 
be  permitted  to  deprive  his  tenant  of  so  important  a  privilege ; 
and  the  doctrine  is,  at  least,  opposed  to  the  tenor  of  some  of  the 
dicta  in  subsequent  cases  in  the  Court  of  Appeals,  as  well  as  of 
tlie  Supreme  Court  of  the  State.  The  case  has  never  been 
directly  overruled,  however,  and  it  does  not  seem  even  to  have 
been  quoted  in  any  reported  case  before  the  New  York  courts.  It 
was  decided  upon  the  authority  of  Parker  v.  Foote  (19  Wend.  R.^ 
309),  and  Mitchell,  J.,  who  delivered  the  opinion  of  the  court, 
appears  to  have  been  very  confident  that  authority  as  well  as 
principle  shows  the  docti'ine  of  that  case  to  be  the  law  of  the 
State  of  New  York.  Edwards,  J.,  concurred  in  the  opinion  of 
Mitchell,  while  Edmonds,  P.  J.,  dissented,  so  that  the  decision 
was  made  by  a  divided  court. 


THE  AMERICAN  DOCTRINE.  537 

In  18-i7,  the  subject  of  the  rii^-ht  to  whidow  lights  was  before 
Sandford,  Y.  C,  in  a  case  pending  in  the  late  Court  of  Chancery 
Df  the  State  of  New  York.  Tlie  question  was  presented  on  a 
motion  to  restore  an  injunction  restrainitig  the  defendants  from 
further  erecting  a  building  in  the  city  of  New  York,  which  would 
deprive  the  complainants'  adjoining  tenement  of  light  and  air, 
claimed  by  them  by  prescription  and  by  contract.  The  defend- 
ants' counsel  showed  to  the  court,  by  reference  to  their  answer 
and  a  diagram  annexed,  and  also  stated,  that  they  had  left  an  open 
space  in  their  rear,  for  the  complainants'  accommodation  as  well 
as  their  own,  from  which  the  complainants'  tenement  might 
derive  light  and  air,  if  they  would  take  down  a  four  story  privy 
forming  a  part  of  their  tenement,  and  butting  against  such  open 
space.  The  injunction  having  been  dissolved,  the  complaiiumts, 
on  the  faith  of  such  statement  and  representation,  took  down  their 
privy,  and  inserted  windows  in  the  wall  of  their  tenement,  in  the 
place  of  the  doors  that  led  to  the  privy.  The  defendants  objected, 
and  commenced  building  a  wall  across  the  open  space  over  against 
such  new  windows,  intended  to  be  carried  to  the  height  of  such 
tenement,  and  which  would  nearly  or  quite  prevent  the  access  of 
light  and  air  to  the  same.  The  distinguished  and  learned  Vice- 
chancellor,  restrained  the  erection  of  such  wall  by  the  defendants. 
It  was  insisted  by  the  defendants,  that  according  to  the  established 
law  in  the  State,  no  right  to  light  and  air  can  be  acquired  by  lapse 
of  time;  that  such  enjoyment  of  light  and  air,  cannot  be  adverse 
or  hostile  to  any  right  of  the  owner  of  the  adjoining  land,  and 
cannot  become  the  foundation  of  a  presumption  of  right  to  con- 
tinue their  use  as  against  such  owner.  The  Yice-chancellor 
referred  to  the  authorities  upon  the  point,  and  regarded  it  as  a 
question  of  vast  importance,  but  was  persuaded  that  it  was  not 
his  duty  to  decide  it  upon  a  mere  interlocutory  application,  and 
left  it  in  doubt  as  to  what  his  decision  would  have  been  upon  the 
snl)ject,  had  he  considered  it  {Banks  v.  The  American  Trad 
Society,  4  Sand.  Ch.  B.,  438).  But  two  years  afterward,  a  case 
came  before  the  Superior  Court  of  the  city  of  New  York,  of  wliicli 
Yice-chancellor  Sandford  was  then  a  distinguished  niem])er,  in 
which  it  was  decided  that  a  landlord  who  owns  land  adjoining  the 
demised  premises,  has  a  right  to  build  on  such  land,  thougli  he 
may  thereby  obstruct  and  darken  the  windows  in  the  tenenient 
demised.  Oakley,  Ch.  J.,  delivered  the  opinion  of  the  court,  and 
68 


538  LAW  OF   WIMJOW  LIGHTS. 

said :  "  When  there  is  no  question  of  ancient  lights  (and  there  is 
none  in  this  case),  the  owner  of  a  lot  adjoining  a  house,  may  sc 
improve  and  build  upon  his  lot,  as  to  shut  up  the  windows  of  such 
house  that  are  situated  in  the  end  or  side  adjacent  to  his  lot.  If 
this  were  not  so,  he  would  be  deprived  of  the  full  benefit  of  his 
own  property.  We  perceive  no  reason  why  a  landlord,  in  respect 
of  his  tenant,  is  more  restricted  as  to  his  vacant  lots,  than  he 
would  be  in  respect  of  any  other  owner  for  years,  or  in  fee,  of  an 
adjacent  house"  {Palmer  v.  Weimore,  2  Sand.  Ji.,  31Q).  The 
action  in  this  case  was  upon  the"  agreement  for  the  rent,  and  the 
defense  was,  that  the  evidence  of  the  obstruction  to  the  windows 
of  the  tenement  devised,  established  an  eviction,  and  defeated  the 
landlord  of  his  rent.  Sandford,  J.,  before  whom  the  action  was 
tried  at  nisi  prius,  decided  that  the  obstruction  of  the  light  was 
not  sufficient  to  constitute  an  eviction,  and  the  decision  was  sus- 
tained at  the  General  Term.  The  decision  of  the  case,  therefore^ 
may  have  been  correct,  even  though  the  landlord  might  have  been 
liable,  in  some  form,  for  obstructing  the  light  of  the  tenement 
devised.  But  the  doctrine  laid  down  at  General  Term  was  as  above 
indicated,  and  is  in  accordance  with  that  which  was  adopted  in  the 
case  of  Myers  v.  Guminel  by  a  divided  court,  as  reported  in  10 
Barbour,  537. 

In  a  case  before  the  Supreme  Court  of  the  State  of  New  York, 
which  was  decided  in  1856,  it  was  complained  that  the  defendant 
erected  upon  his  own  premises,  immediately  adjoining  the  plain- 
tiff's dwelling-house,  and  before  his  windows  and  doors,  a  board 
fence  of  from  eight  to  ten  feet  high,  and  covered  it  with  gas-tar,, 
and  permitted  it  to  remain  so,  to  the  annoyance  of  the  plaintiff, 
and  rendering  the  plaintiff 's  dwelling-house  unfit  for  a  habitation. 
Evidence  was  given  to  support  the  complaint.  The  court,  at  nisi 
prius,  charged  the  jury,  that  the  defendant  "had  not  a  right  to 
build  a  fence  in  an  unusual  manner,  materially  to  injure  and 
annoy  his  neighbor,  and  deprive  him  of  the  use  and  enjoyment  of 
his  lot ;  "  and  further,  "  if  you  find  the  defendant  put  this  fence 
there,  or  covered  it  with  gas-tar,"  etc.,  he  must  be  responsible  for 
any  damages  or  injury  done  thereby."  The  jury  found  a  verdict 
in  favor  of  the  plaintiff,  and  the  defendant  appealed  to  the  General 
Term,  where  the  doctrine  of  the  instructions  relating  to  the  fence 
was  regarded  to  be  to  the  effect,  that  the  defendant  had  not  a  riglit 
to  build  a  fence  on  his  own  land  for  the  purpose  of  excluding  the 


THE  AMERICAN  DOCTRINE.  539 

light  from  the  plaintiff's  dwelling ;  and  this  was  held  to  be  error. 
T.  R.  Strong,  J.,  delivered  the  opinion  of  the  court,  and,  after 
referring  to  certain  things  whicli  are  violations  of  absolute  legal 
rights  and  are  strict  legal  injuries,  said :  "  But  darkening  another's 
windows,  or  depriving  him  of  a  prospect,  by  building  on  one's 
own  land,  wliere  no  right  to  light  unobstructed  has  been  acquired 
l)y  grant  or  prescription,  *  *  *  invade  no  legal  right,  and 
hence  are  not  legal  injuries  "  {Piekard  v.  Collins,  23  Barh.  i?., 
41-1:,  45S).  And  in  1S61,  in  the  same  court,  Hogebooni,  J.,  in 
giving  tlie  opinion  in  a  case,  enumerated  various  cases  in  which 
the  maxim  sic  utere  tuo  ut  alienum  non  Icedas  applies,  said  a  man 
"  may  not  obstruct  ancient  lights  "  {Relyea  v.  Beaver,  S4:Barb.  R., 
547,  552). 

These  are  the  principal  cases  found  in  the  New  York  reports 
involving  the  right  to  window  lights,  or  in  which  the  subject  was 
discussed,  from  which  it  is  not  quite  certain  how  far  the  modern 
English  doctrine  upon  the  subject  may  be  carried.  Clearly,  how- 
ever, the  right  to  ancient  lights  will  be  sustained,  and  the  right  to 
M-indow  lights  which  may  be  secured  by  covenant  or  grant.  And 
the  better  opinion  seems  to  be  that  the  right  to  light  may  also  be 
acquired  by  prescription ;  and  that  the  right  will  also  be  sus- 
tained, where  the  proprietors  of  lands  obtain  their  title  from  a 
common  source,  the  same  grantor  having  conveyed  the  tenement 
with  the  windows  to  one,  and  the  ground  overlooked  to  another. 

The  tendency  of  the  early  judicial  decisions  of  Massachusetts 
upon  the  subject  of  light  and  air,  was  nearly  or  quite  in  accord- 
ance witli  the  principles  of  the  common  law,  as  held  in  England. 
In  a  case  before  the  Supreme  Judicial  Court  in  1815,  it  was  held 
that  in  an  action  against  one  for  stopping  the  plaintiff 's  lights,  it 
is  not  necessary  to  allege  tliat  his  house  was  an  ancient  one,  or 
tliat  lie  is  entitled  by  prescription  to  the  easement  in  question ; 
but,  without  such  allegation,  the  plaintiff  may  prove  an  ancient 
right  to  the  easement,  if  it  be  necessary  to  his  case.  And  the 
question  was  squarely  before  the  court,  and  it  was  expressly  held, 
that  where  one  sells  a  messuage  having  doors  or  windows  opening 
into  a  vacant  lot  adjoining  and  belonging  to  the  vendor,  without 
reserving  a  right  to  build  on  such  lot,  or  to  stop  the  doors  and 
windows,  neither  he  nor  his  grantee  of  such  lot  can  lawfully  stop 
them.  Jackson,  J.,  wlio  delivered  the  opinion  of  the  court, 
referred  to  the  English  authorities  to  sustain  the  position  {Story 


540  i.4IF   OF    WIXDOW  LIGHTS. 

V.  Odin,  12  Mass.  12.,  157,  160).  About  thirty  years  later,  in  a 
case  before  the  same  court,  a  bill  in  equity  was  sought  to  be  main- 
tained upon  the  right  acquired  by  the  principles  of  the  common 
law,  hy  force  of  which  twenty  years'  adverse  use  of  light  and  air 
gives  to  the  possessor  an  easement  of  a  perpetual  character.  The 
counsel  for  the  defendant  urged  that  the  later  English  doctrines 
upon  the  subject  had  not  been  sanctioned  in  the  commonwealth, 
and  were  not  adapted  to  the  state  of  things  in  this  country. 
Dewey,  J.,  who  delivered  the  opinion  of  the  court,  said  that  the 
question  was  an  interesting  one  ;  and  that  the  view  taken  of  it  by 
the  counsel  for  the  defendant  seemed  to  have  been  sanctioned  by 
the  courts  of  the  States  of  New  York  and  Connecticut,  while  the 
tendency  of  the  Massachusetts  decisions  had  been  the  other  way. 
But  for  reasons  which  were  stated,  the  case  was  disposed  of  with- 
out expressing  any  opinion  in  respect  to  the  alleged  easement  in 
the  light  and  air  claimed  {Atkins  v.  Chilson,  7  Met.  i?.,  398,  403) 
In  1856,  a  case  came  before  the  Supreme  Judicial  Court  of 
Massachusetts,  which  raised  the  question  whether  an  owner  of  a 
city  tenement,  by  having  had  windows  opening  toward  the  land 
of  another,  receiving  light  therefrom  for  twenty  years,  without 
obstruction,  acquires  an  absolute  right  to  the  continued  enjoyment 
of  that  privilege,  so  that  in  case  a  coterminous  proprietor  erects  a 
wall  or  building  on  his  own  land  so  as  to  obstruct  such  light,  the 
owner  of  the  land  having  such  windows  can  enter  and  pull  down 
the  wall  causing  such  obstruction.  Upon  this  question,  Shaw,  Ch. 
J.,  who  delivered  the  opinion  of  the  court,  thought  there  had  been 
no  direct  judicial  decision  in  the  commonwealth,  but  he  said : 
"  The  general  rule  of  the  common  law,  before  it  was  regulated  by 
statute,  seems  to  have  been  in  favor  of  the  affirmative  of  the  ques- 
tion; holding  that  uninterrupted  enjoyment  of  air  laterally, 
through  and  over  the  land  of  another,  and  enjoyed  a  length  of 
time,  created  an  easement,  which  could  not  be  disturbed,  like  that 
of  a  right  of  way,  or  aqueduct  or  drain  in  and  over  the  land  of 
another.  *  *  *  In  many  of  the  States  of  the  Union,  the 
negative  of  the  question  has  been  judicially  held ;  that  the  enjoy- 
ment of  light  and  air  in  a  messuage  or  building,  received  through 
windows  laterally,  over  the  vacant  territory  or  lower  building  of 
an  adjoining  proprietor,  gives  to  the  owner  of  such  building  no 
right  to  the  continuance  of  such  enjoyment,  and  imposes  no  sei-vi- 
tude  upon  an  adjoining  estate.     *     *     *     AYe  think   the  rule  is 


THE  AMERICAN  DOCTRINE.  541 

well  settled,  that,  in  a  city  tenement,  an  easement  for  light  and 
air,  derived  from  use  and  enjoyment,  or  implied  grant,  can  only 
extend  to  a  reasonable  distance,  so  as  to  give  to  the  tenement 
entitled  to  it  such  amount  of  air  and  light  as  is  reasonably  neces- 
sary to  the  comfortable  and  useful  occupation  of  the  tenement  for 
the  purposes  of  habitation  or  business."  The  court  decided  that 
the  windows  of  the  defendant  were  not  substantially  deprived  of 
light,  and  the  case  turned  upon  that  view  {Fifty  Associates  v. 
Tudor,  6  Gray's  i?.,  255,  259).  In  this  case,  it  appeared  that  the 
wall  complained  of  was  erected  ten  feet  from  the"  dividing  line, 
and  of  course  ten  feet  from  the  windows  obstructed,  and,  under 
those  circumstances,  the  court  held  that  the  wall  was  no  such  legal 
obstruction  of  the  adverse  party's  air  and  light,  as  to  amount  to  a 
nuisance,  and  the  decision  was  put  upon  that  ground.  But  at  a 
subsequent  term  of  the  same  court,  in  tlie  same  year,  it  was  held, 
that  where  the  owner  of  two  adjoining  lots  of  land,  on  one  of 
which  is  a  building  with  a  window  in  the  wall  close  to  the  divi- 
ding line  between  the  two,  overlooking  the  other  lot,  sells  tliem 
both  by  auction  on  the  same  day,  with  the  privileges  and  appur- 
tenances belonging  to  each,  the  purchaser  of  the  lot  on  which  the 
building  stands  acquires  no  right  of  light  and  air  over  the  other 
lot,  though  the  sale  and  conveyance  to  him  respectively  precede 
the  sale  and  conveyance  of  the  other  lot.  Shaw,  Ch.  J.,  in  deliv- 
ering the  opinion  of  the  court,  said:  "  Tiie  present  case  involves 
no  question  respecting  the  right  which  the  owner  of  a  building 
may  claim  for  light  and  air  through  one  or  more  windows,  from 
and  over  the  land  of  another,  by  actual  use  and  enjoyment  for  a 
required  length  of  time.  The  question  turns  wholly  upon  the 
construction  of  the  deed  from  the  Concord  Milldam  Company  to 
the  plaintiif,  and  that  question  is  whether,  by  implication,  any 
right  to  air  and  light  was  granted  by  that  deed  to  the  plaintiff;" 
and  under  the  circumstances  of  the  case  detailed  by  the  learned 
Chief  Justice,  it  was  held  that  the  plaintift'  did  not  acquire  any 
such  right.  The  case  of  Swansborough  v,  Coventry  (9  Bingham, 
305)  was  referred  to  and  distinguished  from  the  one  at  bar  {Col- 
lier v.  Pierce,  7  GraifsR.,  18,  19). 

In  the  year  1852,  the  General  Court  of  Massachusetts  enacted 
that,  "  no  ])erson,  who  has  erected  or  may  erect  any  house  or 
other  building  near  the  land  of  any  other  person,  with  windows 
overlooking  such  land  of  such  other  person,  shall,  by  mere  con- 


542  i^TT   OF   WINBOW  LIGHTS. 

tinuance  of  such  windows,  acquire  any  eaBeraents  of  light  or  air, 
60  as  to  prevent  such  other  person,  and  those  claiming  under  him 
from  erecting  any  building  on  such  land"  {Statutes  of  1852,  ch. 
144).  It  has  been  held,  however,  by  the  Supreme  Judicial  Court 
of  the  State,  that  previous  to  the  enactment  of  this  statute,  by 
the  law  of  Massachusetts,  the  mere  uninterrupted  continuance,  for 
more  than  twenty  years,  of  a  window  with  a  projecting  sill,  over- 
looking the  land  of  another,  did  not  necessarily  create  any  ease- 
ment of  light  or  air  ;  and  Metcalf,  J.,  who  delivered  the  opinion 
of  the  court,  referred  to  the  American  decisions  upon  the  subject, 
and  concluded :  "  The  strict  gi-ounds  of  the  decisions  cited  are, 
1st.  That  the  making  of  a  window  in  one's  building,  on  his  own 
land,  and  overlooking  the  land  of  his  neighbor,  is  no  encroach- 
ment on  his  neighbor's  rights,  and  therefore  cannot  be  regarded  as 
adverse  to  him;  2d.  That  the  English  doctrine  is  not  applicable 
to  the  state  of  things  in  this  country,  and  would,  if  applied,  work 
mischievous  consequences  in  our  cities  and  villages  "  {Rogers  v. 
Sawin,  10  Gray's  i?.,  3Y6,  379).  The  same  doctrine  was  held, 
in  a  later  case,  before  the  same  court,  in  which  it  was  declared, 
that  no  easement  of  light  and  air  was  acquired  by  their  coming 
laterally  for  more  than  twenty  years  before  the  statute  of  1852,  to 
a  window  in  the  wall  of  a  house  standing  on  the  boundary  line  of 
its  owners's  estate,  although  the  window  swung  out  on  hinges  over 
the  adjoining  land  {Carrig  v.  Dee,  14  Gray's  i?.,  583).  And  the 
same  principles  were  subsequently  recognized  by  the  same  court 
in  a  case  in  which  Bigelow,  J.,  delivered  the  opinion  {Richardson 
V.  Pond,  15  Gray's  R,,  387).  It  seems,  therefore,  that  by  the 
law  of  Massachusetts,  as  it  now  stands,  ancient  lights,  and  those 
which  are  secured  by  express  covenant  or  grant,  only,  will  be 
protected  by  the  courts  of  the  State.  Several  cases  have  been 
passed  upon,  in  which  a  construction  has  been  given  to  the  lan- 
guage of  covenants  or  conveyances  relating  to  light  and  air,  but  it 
is  not  needful  that  they  be  referred  to  in  this  place. 


THE  AMERICAN  DOCTRINE.  543 


CHAPTER  XLYII. 

RULP:S  KESPECTING    the    right  to  window  lights  in  the    AMERICAN 

STATES DECISIONS    OF   THE  COURTS  IN  MAINE,  VERMONT  AND  SOME 

OTHERS  OF  THE  UNITED    STATES    UPON   THE    SUBJECT   OF    LIGHT    AND 
AIR DOCTRINE  OF  THE  AUTHORITIES. 

The  decisions  of  the  courts  upon  tlie  subject  of  air  and  light 
are  more  nnmerons  in  the  States  of  New  York  and  Massachusetts 
tlian  in  any  of  the  other  States  of  the  Union,  although  the  ques- 
tion has  been  passed  upon  by  tlie  courts  in  a  majority  of  the 
States,  and  the  decisions  for  the  most  part  are  in  harmony  with 
those  in  the  cases  already  considered.  In  the  State  of  Maine  there 
is  a  statute  which  provides  that  no  easement  shall  be  acquired  by 
adverse  use,  except  for  twenty  years  uninterrupted  {R.  S.,  ch.  147, 
§  14) ;  and  the  Supreme  Court  of  the  State  has  held  that  this  stat- 
ute was  not  intended  to  give  any  rights  such  as  therein  specified, 
or  to  determine  how  they  might  be  acquired,  but  to  prevent  their 
acquisition  without  certain  prescribed  conditions.  Accordingly  it 
was  held  that,  where  one  erects  a  building  upon  his  own  land 
immediately  adjoining  the  land  of  another  person,  and  puts  out 
windows  overlooking  that  neighbor's  land,  he  does  nothing  more 
than  exercise  a  legal  right ;  and  that  a  continuance  of  the  use  of 
such  windows  uninterrupted  for  twenty  years  will  not  give  him 
any  additional  right  so  that  he  can  maintain  an  action  against  the 
owner  of  the  adjoining  land  for  obstructing  such  lights  by  build- 
ings erected  on  his  own  land.  But  it  was  declared,  that  if  the 
person  so  putting  out  windows  could  acquire  the  right  to  main- 
tain them  unobstructed  by  use,  he  could  not  while  he  himself  was 
in  the  possession  of  the  adjoining  land  as  tenant  of  the  owner 
{Pierre  v.  Fernald,  26  Maine  R.,  436). 

In  one  case  decided  by  the  Supreme  Court  of  Vermont,  it  was 
decided,  that  long  continued  use  of  light  for  the  windows  of  one's 
building,  standing  ou  or  near  the  line  of  his  land,  raises  no  pre- 
sumption of  a  grant  of  the  right  to  such  use  from  the  owner  of 
the  adjoining  land  ;  and  that  the  former  can  maintain  no  action 
against  the  latter  fur  the  obstruction  of  such  light  by  an  erection 
upon  his  own  premises.  The  English  doctrine  of  ancient  lights 
was  examined  by  Pierpoint,  J.,  and  deemed  to  be  inapplicable  in 
this  country ;  but  the  opinion  was  advanced,  however,  that  one. 


544  LAW  OF   WJyDOW  LIGHTS. 

who  lias  conveyed  to  another  a  building  witli  the  privileges,  etc., 
has  no  right  to  make  an  erection  on  his  own  land  which  shall  shut 
out  the  light  from  the  windows  of  the  building  so  conveyed  [Hub- 
bard V.  Town,  33  Vt.  R.,  295). 

In  1851,  the  question  of  the  right  to  light  came  before  the 
Supreme  Court  of  Pennsylvania,  and  certain  principles  were  laid 
d(nvn  as  applicable  to  the  subject  in  that  State.  The  case  was 
this  :  Two  houses  belonging  to  the  same  owner  being  advertised 
for  sale  at  tlie  same  time,  one  was  struck  off  and  the  conditions  of 
sale  signed,  the  sale  to  be  clear  of  incumbrances;  the  other  house, 
in  which  were  windows  overlooking  the  first  property,  was  sold 
immediately  afterward.  The  court  held  that  the  sales  were  -not 
simultaneous,  and  that  the  house  first  sold  was  not  subject  to  the 
easement  of  light  for  the  windows  in  the  other.  But  it  was 
declared  that,  if  the  sales  had  heen  simultaneoiis.,  the  case  would 
not  be  different,  as  the  property  last  sold  should  have  been  sold 
jirst  in  order  to  entitle  the  purchaser  of  it  to  the  easement.  And 
the  rule  was  laid  down,  that  where  two  lots  of  land  are  passing 
from  a  vendor  at  the  same  instant,  it  cannot  be  implied  that  he  is 
making  one  servient  to  the  other  as  to  light  and  air,  especially 
when  both  are  sold  clear  of  incumbrance,  for  an  easement  is  an 
incumbrance  {Maynard  v.  Esher,  17  Penn.  i?.,  222).  And  eight 
years  afterward  the  question,  in  a  different  form,  came  before  the 
same  court,  when  it  was  declared  that  in  the  State  of  Pennsylva- 
nia, the  grant  of  an  easement  for  light  and  air  is  not  implied  from 
the  fact  that  such  a  privilege  has  been  long  enjoyed.  Nor  is  a 
contract  for  such  a  privilege  implied,  on  the  sale  of  a  house  and 
lot,  from  the  character  of  the  improvements  on  the  lot  sold  and 
the  adjoining  lots.  And  it  was  observed  that  the  advantage  which 
one  man  derives  by  obtaining  light  and  air  over  the  ground  of 
another,  is  not  an  adverse  privilege;  and  no  implication  of  a  grant 
being  necessary  to  account  for  it,  none  arises  from  the  fact  of 
enjoyment.  Lowrie,  Ch.  J.,  who  delivered  the  opinion  of  the 
court,  observed  that  there  could  be  no  possible  case  in  which  such 
an  implication  could  arise,  but  that  the  court  were  satisfied  that 
none  was  necessary  or  proper  in  the  case  under  consideration 
{Ilaverstick  v,  Sii?e,  33  Penn.  P.,  368,  371 ;  vide  King  v.  Large, 
7  Philadelj?hia  P.,  280). 

The  Court  of  Appeals  of  the  State  of  Maryland  have  held, 
within  the  last  few  years,  that  the  doctrine  that  if  the  owner  of 


TUE  A  Jf ERIC  AN  DOCTRIXE.  545' 

hvo  adjoining  lots,  one  vacant,  and  the  other  luving  on  it  a  build- 
ing, with  lights  opening  over  the  former,  sells  the  latter  without 
reserving  a  right  to  build  on  the  vacant  lot  or  stop  such  lights,, 
then  he  cannot  afterward  obstruct  them,  does  not  apply  where 
there  being  several  owners  to  each  lot,  some  but  not  all  vi  thera 
are  part  owners  of  both  lots.  And  it  was  declared,  that  the 
modei'n  English  docti'ine  of  the  acquisition  of  a  right  to  open  and 
unobstructed  use  of  lights  by  an  adverse  use  of  them  for  twenty 
years  is  not  adopted  in  Maryland.  A  distinction  was  made 
between  this  and  some  other  kinds  of  easements  ;  for  it  was  held 
in  the  same  case,  that  the  owner  of  land,  the  eaves  of  whose  house 
extend  over  the  adjoining  lot  without  objection  for  twenty  years,, 
acquires  an  easement  in  such  lot.  Although  the  rule  was  not 
expressly  held  applicable  in  the  State,  that  an  owner  owning  twO' 
adjoining  lots,  on  one  of  M-hich  is  a  house  with  windows  opening; 
over  the  other  which  is  vacant,  sells  the  latter  without  reservation,, 
will  not  be  permitted  to  build  upon  the  lot  retained  in  such  a 
manner  as  to  seriously  obstruct  the  lights  of  the  house  sold,  yet 
the  doctrine  was  impliedly  sanctioned  by  the  court  {Cherry  v. 
Stei7i,  11  Md.  E.,  1). 

The  Supreme  Court  of  West  Yirginia  has  recently  considered 
the  question  of  the  right  to  window  lights,  in.  a  case  in  which  it 
appeared  that  one  Dorsey  was  in  the  occupation  of  property  with 
windows,  constructed  in  1803,  and  one  Cunningham  was  the 
owner  of  the  adjoining  property,  which  had  been,  occupied  from 
1803,  by  himself  and  those  from  whom  he  derived  title  to  1826, 
and  thence  till  1866,  by  his  tenants,  when  an  application  was  made' 
by  Dorsey  for  an  injunction  to  restrain  the  tenants  of  Cunning- 
ham from  the  erection  of  buildings  upon  the  premises  of  Cunning- 
ham which  should  darken  the  windows  of  Dorsey.  The  courtr 
held  that  Dorsey  was  not  entitled  to  the  injunction  {Canningliam- 
V.  Dorsey,  4  W.   Ya.  R.,  293). 

The  Supreme  Court  of  Ohio  has  recently  held  that  wo  prescrip- 
tive right  to  the  use  of  light  and  air  through  windows  can  be- 
acquired  by  any  length  of  user  and  enjoyment  {Midler  v.  Strieker^ 
10  Ohio  JL,  135).  But  the  courts  of  South  Carolina  held  in  one 
case,  that  an  action  lies  against  the  owner  of  the  adjoining  soil 
for  obstructing  the  lights  of  a  party,  of  which  he  had  had  the 
uninterrupted  enjoyment  for  more  than  twenty  years  {McCready 
V.  Thomson^  Dudley's  i?.,  131).  A  doubt,  however,  seems  to  be 
69 


546  ^-'IR'   OF   WINDOW  LIGHTS. 

thrown  over  the  doctrine  of  this  case,  by  a  later  decision,  where 
it  appeared  that  the  plaintiff's  house  being  highest,  his  windows, 
for  more  than  twenty  years,  overlooked  the  defendant's  house ; 
the  defendant  built  a  taller  house  and  closed  the  plaintiff 's  win 
dows,  and  the  plaintiff  brought  suit  for  the  obstruation.  The 
court  held,  that  the  enjoyment  of  an  easement  must  be  adverse  tt> 
raise  the  presumption  of  a  grant ;  that  such  enjoyment  must  con- 
stitute a  legal  injury  for  which  an  action  would  lie ;  that  the 
receiving  of  light  coming  over  defendant's  house  into  plaintiff's 
windows  did  not  amount  to  such  legal  injury ;  and  of  course  did 
not  raise  the  presumption  of  a  grant.  In  the  course  of  the 
opinion  of  the  court,  it  is  observed  :  "  The  same  distinctions  would 
prevent  the  acquisition  of  an  easement  in  the  shade  of  a  tree 
which  stands  on  his  neighbor's  land  near  his  boundary,  or  of  an 
easement  to  have  continued  the  protection  against  winds  which  a 
neighbor's  forest,  or  a  hill  on  his  land,  had  long  added  to  another's 
orchard"  Napier  v.  Bulwinkle,  5  Rich.  R.,  311). 

In  an  action  before  the  Supreme  Court  of  Alabama  some  four- 
teen years  ago,  it  was  held  that  an  averment  that  the  plaintiff 
owned  a  dwelling-house,  in  which  there  were,  and  still  of  right 
ought  to  be,  five  ancient  windows,  through  which  the  light  and 
air  ought  to  have  entered,  and  still  ought  to  enter  of  right,  allows 
proof  of  a  prescriptive  right,  of  one  founded  on  grant,  or  on 
adverse  user.  But  the  question  was  left  in  doubt,  whether  or  not 
adverse  user  during  the  period  limited  for  real  actions,  conclu- 
sively settles  the  right  to  the  unobstructed  use  of  ancient  win- 
dows (  Ward  v.  Neal,  35  Ala.  R.,  602).  But  some  three  or  four 
years  later,  the  same  court  held,  that  the  English  doctrine  that  an 
action  for  obstructing  ancient  lights  can  be  sustained  upon  mere 
uninterrupted  user  of  the  easement  for  a  period  which  would  bar 
a  recovery  in  ejectment  against  a  trespasser,  has  not  been  adopted 
in  Alabama,  and  it  was  declared  that  the  doctrine  had  not  been 
adopted  in  this  country  generally  (  Wa?'d  v.  Neal,  1  Ala.  Select 
Ca^es,  4:13).  And  finally  the  same  court  has  expressly  laid  down 
;the  rule  as  adopted  in  that  State,  that  an  easement  of  light  cannot 
ibe  acquired  by  prescription  (  Ward  v.  Neal,  37  Ala.  R.,  500). 

In  the  State  of  Louisiana  they  have  a  statute  regulating  the 
•servitudes  of  light  and  view  ;  and  the  Supreme  Court  of  the  State 
has  held,  that  the  erection  of  a  verandah  of  the  same  width  with 
the  street,  in  front  of  one's  house,  is  not  an  infringement  of  the 


THE  AMEEICAN  DOCTRINE.  547 

rights  of  the  owner  of  the  adjoining  tenement,  and  cannot  be 
complained  of  as  a  violation  of  tlie  articles  of  the  civil  code  upon 
that  subject  {Durant  v.  Eiddell,  12  La.  An.  R.^  746).  But  the 
same  court  has  more  recently  held  that,  where  the  owner  of  the 
lots  on  both  sides  of  a  division  wall  makes  an  opening  or  window 
in  the  wall,  it  is  an  act  constituting  the  "  destination  du  pere  de 
famiUe^''  and  is  equivalent  to  a  title  creating  a  servitude,  as  soon 
as  a  division  of  the  ownership  of  the  property  takes  place.  And 
it  was  furtlier  held,  that  the  erection  of  works  contrary  to  the 
servitude  would  not  have  the  effect  of  extinguishing  it,  unless  the 
owner  of  the  estate  to  which  the  servitude  was  due  had  given  an 
express  permission  or  consent  to  the  erection  of  such  works  either 
verbally  or  in  writing  [Lavilleheuve  v.  Cosgrove,  13  La.  An.  R., 
323).  And  the  same  court  has  since  held,  that  the  servitude  of 
light  and  sight  is  continuous  and  apparent,  and  may  be  imposed 
by  the  owner  of  two  lots,  on  one  in  favor  of  the  other  {Cleris  v. 
Tieman,  15  La.  An.  R.,  316).  This  doctrine  may  be  sustained 
without  the  aid  of  any  statutory  enactment,  provided  the  servi- 
tude is  declared  in  the  conveyance  of  the  lot  first  granted.  The 
Supreme  Court  of  Texas  has  recently  held,  that  by  the  common 
law  a  prescriptive  right  to  prevent  the  adjacent  proprietor  from 
inclosing  or  building  upon  his  own  land  cannot  be  acquired  by  the 
use  of  a  house  having  windows  looking  out  upon  his  land,  and 
receiving  light  and  air  from  that  direction  for  a  period  of  ten 
years.  The  doctrine  of  the  common  law  upon  the  subject,  was 
not  expressly  sanctioned  by  the  court,  although  it  may  be  inferred 
from  the  opinion  in  the  case  that  the  doctrine  was  approved 
{Klein  V.  Gehrimg,  25  Tex.  R.,  332). 

The  question  of  the  right  to  window  lights  has  not,  as  yet,  been 
much  considered  by  the  courts  of  the  western  and  newly-settled 
States  of  the  Union  ;  although  a  case  has  lately  been  before  the 
Supreme  Court  of  the  State  of  Iowa,  in  which  the  subject  was 
elaborately  examined,  and  the  conclusion  was  reached  by  Dillon, 
Ch.  J.,  who  delivered  the  opinion,  that  the  English  doctrine  tliat 
there  may  be  a  grant  of  light  and  air  hy  implication  is  not  appli- 
cable to  the  situation  and  condition  of  this  country.  The  Eng- 
lish rule  was  declared  to  be  this  :  If  a  man  sells  a  house  with  win- 
dows and  doors  opening  on  to  his  vacant  ground,  neither  he  nor 
his  grantee  can  afterward  build  upon  such  vacant  ground  so  as  tc 
obstruct  the  flow  of  light  and  air  without  express  reservation  of 


548  -^-411'   OF   WIXDOVr  LIGHTS. 

the  riglit  to  do  so ;  and  the  court  held,  that  ii'  such  a  rule  should 
be  recugnized  in  this  country,  it  should  be  applied  only  in  cases 
where  the  circumstances  make  it  clear  that  such  must  have  been 
the  intention  of  the  parties.  It  was,  however,  declared  by  tho 
Chief  Justice,  that  it  is  settled  law  that  there  is  no  irapUed  reser- 
vation of  a  right  to  light  and  air;  so  that  if  one  sells  vacant  land 
and  retains  the  house  adjoining,  the  purchaser  of  the  vacant  land 
may  build  thereon,  though  he  darken  thereby  the  windows  of  the 
house  of  the  vendor.  These  positions  were  examined  in  the  light 
of  the  authorities  both  English  and  American,  although  they  were 
not  necessarily  settled  by  the  judgment  of  the  court,  for  the 
reason  that  the  peculiar  facts  of  the  case  might  well  conduce  to 
the  conclusion  arrived  at  independent  of  the  considerations  in 
respect  to  the  common-law  doctrine  discussed.  Indeed,  it  was 
expressly  declared  that,  the  nature  of  the  conveyances  to  the  plain- 
tifl's ;  the  character  of  the  buildings  showing  them  not  to  be  essen- 
tially dependent  on  the  rear  windows  for  light ;  the  nature  and 
effect  of  previous  alienations  of  adjacent  property  by  the  common 
vendor ;  the  expi*ess  provision  of  a  four-feet  right  of  way  in  the 
rear  of  the  plaintiff's  tenements,  were  held  to  be  circumstances 
sufficient  to  negative  any  implied  easement  of  light  and  air  over 
adjacent  land  retained  by  the  vendor  of  the  plaintiffs.  The  real 
doctrine  of  the  case  would  seem  to  be,  that  there  was  no  implied 
grant  of  an  easement  of  light  and  air  for  the  rear  windoM-s  of  a 
building,  where  the  building  was  not  essentially  dependent  on  such 
windows  for  light  when  conveyed,  and  where  several  easements, 
but  not  this  one,  were  expressly  created  by  the  conveyance,  and 
where  there  was  an  express  grant  of  a  four-feet  right  of  way  at 
the  rear  of  the  building,  separating  the  land  claimed  to  be  subject 
to  the  easement  from  the  alleged  dominant  tenement.  This  is 
really  all  that  was  settled  by  the  case,  although  the  Chief  Justice 
declared  the  rule  iu>t  a  sound  one  that  permits,  under  any  circum- 
stances, an  easen^ent  of  light  and  air  to  be  burdened,  by  implica- 
tion, upon  an  adjoining  estate  so  as  to  prevent  the  owner  of  such 
estate  from  building  on  or  improving  it  as  he  pleases.  The  opin- 
i(jn  of  the  court  opens  by  affirming  that  the  main  principles 
involved  in  the  case  had  never  been  judicially  settled  in  the  State, 
and  that  the  adjudications  elsewhere  upon  the  same  or  similar 
questions  were  not  uniform.  American  authorities  were  cited,  both 
as  sustaining  the  doctrine,  that  a  vendor  of  a  house  cannot  after- 


THE  AMERICAN  DOCTRINE.  540 

vvard,  on  his  adjoining  vacant  land,  make  an  erection  which  shall 
deprive  such  house  of  light,  and  as  opposed  to  tlie  doctrine,  with 
a  decided  preponderance  in  favor  of  the  former,  and  finally,  it 
is  observed :  "  Without  positively  deciding  that  there  may  not, 
under  any  circumstances,  be  an  implied  easement  of  light  and  air, 
we  hold  that  the  circumstances  before  enumerated  negative  any 
such  implication  or  easement  in  the  case  under  consideration " 
{Mon'lsori  v.  3£arquardt,  24  Iowa  12.,  35). 

The  doctrine  of  the  American  courts  upon  the  subject  of  the 
right  to  light  and  air  must  be  gathered  from  the  cases  considered 
in  this  and  the  preceding  chapter.  It  will  be  observed  that  these 
cases  are  not  entirely  harmonious  upon  the  question,  and  the  judg- 
ment in  several  of  them  was  rendered  by  a  divided  court ;  and 
vet,  the  general  drift  of  opinion  is  quite  apparent  and  reliable.  In 
the  last  case  cited,  the  only  branch  of  the  subject  discussed  was, 
whether  it  is  a  principle  of  American  law,  that  if  a  man  sells  a 
liouse  with  windows  and  doors  opening  on  to  his  vacant  ground, 
he  nor  his  grantee  cannot  afterward  build  upon  such  vacant 
ground  in  such  a  manner  as  seriously  to  obstruct  the  flow  of  light 
and  air  to  such  house,  without  express  reservation  of  the  right  to 
do  so ;  and  the  Chief  Justice,  who  delivered  the  opinion  of  the 
court,  holds  in  the  negative,  while  the  better  opinion,  perhaps, 
where  the  subject  is  unaffected  by  statute,  would  justify  an  answer 
in  the  affirmative.  Most  of  the  other  cases  considered,  involve, 
severally,  a  single  branch  of  the  subject,  although  in  some  of 
tliem  the  entire  English  common  law  upon  the  question  is  examined. 

Judge  Washburn,  in  liis  treatise  on  Easements  and  Servitudes, 
devotes  a  fcAV  pages  upon  the  subject  of  light  and  air,  and  after 
examining  the  English  authorities,  says  :  "  Tlie  subject  has  thus 
far  been  treated  of  chiefly  from  the  point  of  view  of  the  English 
common  law,  with  a  brief  alhision  to  English  local  statutes.  This 
has  been  done  in  order  to  present,  in  something  like  a  connected 
order,  the  rules  which  prevail  in  the  American  States  upon  the 
subject  of  acquiring  rights  to  light  and  air  by  mere  length  of 
enjoyment.  These  will  generally  be  found  to  be  at  variance  with 
the  English  law\  And  even  as  to  the  effect  to  be  given  to  grants, 
in  respect  to  the  enjoyment  of  light  and  air,  arising  from  the  con- 
dition and  circ'imstances  of  the  estates  to  which  they  relate,  the 
decisions  will  be  found  to  be  far  from  uniform,  and  some  of  thein 
not  very  satisfactory. 


550  i^ir  OF  WINDOW  lights. 

"  The  reason  generally  assigned  for  adopting  a  different  rule  in 
this  country,  as  to  presumptive  rights  to  light  and  air,  from  that 
which  prevails  in  England  is,  that  the  latter  is  not  suited  to  the 
condition  of  a  country  which  is  growing  and  changing  so  rapidly 
in  all  its  relations  of  property,  as  well  as  its  value  and  modes  of 
enjoyment.     *     ^     * . 

"  It  will  be  found  it  is  believed,  that  in  New  York,  Massachu- 
setts, South  Carolina,  Maine,  Maryland,  Pennsylvania,  Alabama 
and  Connecticut,  the  doctrine  of  gaining  a  prescriptive  right  to 
light  and  air,  by  mere  length  of  enjoyment  has  been  discarded ; 
while  the  English  rule  in  this  respect  is  retained  in  Illinois,  New 
Jersey  and  Louisiana"  {WasJibm^n  on  Ease,  and  Serv,, '2,d  ed., 
5S2,  583). 

In  respect  to  the  doctrine  of  the  right  to  window  lights  by 
implication,  the  learned  author  says  :  "  So  far,  therefore,  as  weight 
of  authority  both  English  and  American  goes,  it  would  seem  that, 
if  one  sells  a  house,  the  light  necessary  for  the  reasonable  enjoy- 
ment whereof  is  derived  from  and  across  adjoining  land,  then 
belonging  to  the  same  owner,  the  easement  of  light  and  air  over 
such  vacant  lot  would  pass  as  incident  to  the  dwelling-house, 
hecause  necessary  to  the  enjoyment  thereof ^  but  that  the  law  would 
not  carry  the  doctrine  to  the  securing  of  such  easement  as  a  mere 
convenience  to  the  granted  premises  "  (  Washib.  on  Ease,  and  Serv.y 
590).  And  Judge  Story  recognized  this  doctrine  to  the  fullest 
extent.  While  presiding  in  the  Circuit  Court  of  the  United 
States  for  the  first  circuit,  he  had  a  case  before  him,  in  which  he 
says :  "  There  can  be  no  doubt  that  the  grant  carries  with  it  the 
right  to  the  enjoyment  of  the  light  of  those  windows,  and  that 
the  grantor  cannot  by  building  on  his  adjacent  lot  entitle  himself 
to  obstruct  the  light  or  close  up  the  windows.  *  *  *  Their 
grant  carried,  by  necessary  implication,  a  right  to  the  door  and  win- 
dows, and  the  passage  as  it  had  been,  and  as  it  then  was  used  " 
(  United  States  v.  Ajypleton,  1  Sumtie/'^s  li.,  492,  502). 

Upon  this  subject.  Chancellor  Kent  says  :  "  This  doctrine  of 
ancient  lights,  or,  in  the  language  of  the  writers  on  the  civil  law, 
borrowed  from  the  law  itself,  of  '  servitudes  of  lights  or  prospect ' 
attached  to  estates,  is  laid  down  with  great  precision  in  the 
Pandects,  and  in  the  codes  of  those  modern  nations  which  have 
made  the  civil  law  the  basis  of  their  municipal  law  ;  and  it  is  evi- 
dence of  much  civilization  and  refinement  in  the  modifications  ol 


THE  AMERICAN  DOCTRINE,  551 

j->ro])crt3\  But  the  doctrine  is  not  much  relished  in  this  country, 
owing  to  the  rapid  changes  and  improvements  in  our  cities  and 
viHages."  And  in  confirmation  of  this  last  remark  of  the  learned 
commentatoi-,  he  refers  to  the  ease  of  ParTcer  v.  Foote  (19  Wend, 
li.,  309),  which  goes  so  far  as  to  declare  that  the  modern  English 
doctrine,  on  the  subject  of  lights,  was  an  anomaly  in  the  law,  and 
not  applicable  to  the  condition  of  the  cities  and  villages  in  this 
country,  and  in  respect  to  the  case,  observes :  "  Though  this 
incorporeal  servitude  of  light  is  tamiliar  to  the  laws  of  all  civilized 
nations,  and  is,  under  due  regulations,  a  very  valuable  incident  to 
the  enjoyment  of  property,  there  does  not  seem  to  be  any  well 
founded  objection  to  the  decision  in  the  case  last  referred  to,  so 
far  as  it  goes  to  declare  that  the  enjoyment  of  the  easement  must 
be  uninterrupted  for  the  period  of  twenty  years,  and  under  a  claim 
or  assertion  of  right,  and  with  the  knowledge  and  acquiescence  of 
the  owner ;  and  that  the  presumption  of  right,  under  these  cir- 
cumstances, is  not  an  absolute  bar,  and  conclusive,  but  may  be 
explained  and  repelled,  and  is  only  a  matter  of  evidence  fora  jurj'- 
to  infer  the  right"  (3  Kent's  Com.,  7th  ecL,  549,  550). 

In  view  of  the  authorities,  it  may  be  predicted,  that,  as  the 
country  grows  older  and  more  populous,  the  modern  doctrine  of 
the  English  common  law,  upon  the  subject  of  window  lights,  will 
be  gradually  adopted  in  this  country.  According  to  the  present 
state  of  the  law  here,  it  may  be  affirmed,  that,  where  there  is  no 
statute  to  qualify  the  doctrine,  the  better  opinion  is,  that  the  Eng- 
lish rule  in  respect  to  ancient  lights,  and  the  acquiring  the  right 
to  light  and  air  by  grant  or  covenant,  and  by  implication  in  cer- 
tain cases,  and  by  prescription,  are  more  generally  recognized  in 
the  American  States,  and  the  doctrine  in  these  respects  is  in  har- 
mony with  equity  and  fair  dealing. 


552  ^^'^^  OF   WINDOW  LIGHTS. 


CHAPTER  XLYIII. 

THE  EXTENT  OF  THE    EIGHT  TO  WINDOW  LIGHTS THE  GENERAL  RULE 

UPON  THE  SUBJECT HOW   THE    EIGHT   MAYBE    LOST THE  EIGHT 

UNDEE  SPECIAL  COVENANTS. 

After  the  right  to  the  enjoyment  of  light  and  air  is  established 
in  a  given  case,  it  next  becomes  important  to  consider  the  extent 
to  which  the  right  may  be  maintained.  In  respect  to  this,  the 
rule  settled  by  the  authorities  seems  to  be,  that  the  owner  of  the 
servient  tenement  will  not  be  permitted  to  make  any  such  use  of 
his  property  as  shall  cause  a  sensible  diminution  of  the  value  of 
the  dominant  tenement  by  the  obstruction  of  the  access  to  it  of 
light  and  air,  to  such  a  degree  as  to  interfere  with  the  comfort  of 
the  dwellers  in  the  house  in  the  ordinary  occupations  of  life,  or 
with  the  beneficial  use  of  the  premises  for  the  purposes  of  busi- 
ness. This  is  substantially  the  rule  as  laid  down  in  the  English 
courts,  at  an  early  day,  and  repeated  quite  recently  by  Vice-chan- 
cellor Wood  in  the  English  Court  of  Chancery,  in  a  case  in  M-hich 
he  said:  "  First  of  all,  it  is  necessary  to  ascertain  what  it  is  that 
will  at  law  support  a  claim  for  damages  in  respect  of  an  injury 
done  to  a  building  by  the  obstruction  of  light  and  air;  and  the 
authority  to  which  I  would  refer,  in  preference  to  any  other,  upon 
this  subject,  is  the  summing  up  of  Chief  Justice  Best  in  the  case 
of  Back  V.  Stacei/,  because  that  summing  up  has  been  approved 
of  by  the  Lord  Justices  in  a  recent  case  before  their  Lordships. 
The  Chief  Justice  told  the  jury,  '  in  order  to  give  a  right  of 
action,  and  sustain  the  issue,  there  must  be  a  substantial  privation 
of  liglit  sufHcient  to  render  the  occupation  of  the  house  uncom- 
fortaljle,  a7id  to  prevent  the  plaintiff  from  carrying  on  his  accus- 
tomed business  as  beneficially  as  he  had  formerly  done.'  With 
the  single  exception  of  reading  or  for  and,  I  apprehend  that  the 
above  statement  correctly  lays  down  the  doctrine  in  the  manner 
in  which  it  would  now  be  supported  in  an  action  at  law  ^^  {Dent 
V.  T/te  Auction  Mart  Company,  L.  R.,  2  Eq.,  245  ;  S.  C,  35  Law 
J.  liep.,  N.  S.,  Ch.  560 ;  and  vide  Back  v.  Stacey,  2  Car.  <& 
Payne's  It.,  465).  A  similar  doctrine  has  been  frequently  recog- 
nized by  the  English  courts,  both  at  law  and  in  equity.  Said 
Parke,  B.,  in  submitting  a  case  to  the  jury  :  "  A  man  can  bring 


EXTENT  OF  TUE  RIG  FIT.  553 

no  action  for  the  loss  of  a  look-out  or  a  prospect,  but  he  may  do 
60  if  the  light  and  air  which  would  come  to  his  windows  are 
diminished  so  as  sensibly  to  diminish  the  value  of  his  premises 
for  occupation  "  (  Wells  v.  Odf/,  7  Car.  i&  Payne's  R.,  410).  And 
Tindal,  Ch.  J.,  in  a  case  before  him  at  nisi  prius,  said  :  "  It  is 
nut  every  possible,  every  speculative  exclusion  of  light  whicli  is 
the  ground  of  an  action  ;  but  that  -which  the  law  recognizes  is, 
such  a  diminution  of  liglit  as  really  makes  the  premises  to  a  sen- 
sible degree  less  fit  for  the  purposes  of  business"  {Parker  v. 
Smith,  5  Car.  c&  Payne's  P.,  438).  To  the  same  effect  was  the 
direction  to  the  jury  in  a  case  tried  before  him,  when  he  said: 
'•  To  sustain  this  action  there  must  have  been  a  considerable 
diminution  of  light,  and  the  merely  taking  off  a  ray  or  two  will 
not  be  sufficient "  {Pringle  v.  Wai^nfiam,  7  Car.  (&  Payne's  P., 
377). 

In  a  recent  case  before  Lord  Cranworth,  High  Chancellor  of 
England,  which  was  one  of  obstruction  to  the  window  lights  of  a 
private  residence,  his  Lordship  considered  :  "  That  what  the  plain- 
tiff was  bound  to  show  was,  that  the  buildings  of  the  defendant 
caused  such  an  obstruction  of  light  as  to  interfere  with  the  ordi- 
nary occupations  of  life.  The  real  question  was,  whether  the 
light  was  so  obstructed  as  to  cause  material  inconvenience  to  the 
occupiers  of  the  house  in  the  ordinary  occupations  of  life"  {Clarke 
V.  Clark,  L.  P.,  1  Ch.  20  ;  S.  C,  35  Law  J.  Rep.,  N.  S.,  Ch.  153). 
And  it  should  be  stated  that  it  has  been  recently  held  by  Kinder- 
sley,  Y.  C,  in  a  case  before  the  English  Court  of  Chancery,  that 
in  the  eye  of  the  law  it  is  the  diminution  of  the  value  of  the 
dominant  tenement  caused  by  the  interference  with  the  comfort 
of  its  inmates,  and  not  the  loss  of  the  personal  comfort  of  the 
inmates,  that  entitles  the  owner  to  his  remedy  (  Wilson  v.  Townend, 
1  Drew.  &  Smale's  R.,  324). 

The  question  in  these  cases  is,  whether  there  has  been  such  a 
material  interference  with  the  light  and  air  reaching  the  dominant 
tenement,  as  to  cause  material  annoyance  to  those  who  occupy  it, 
ond  thus  diminish  the  value  of  it.  Questions  on  this  subject  aro 
questions  of  degree,  and  are  therefore  very  difficult  to  deal  with. 
It  has  been  well  said,  that  all  that  can  be  done  in  this  respect  is, 
to  attend  to  the  special  facts  in  every  case  as  it  arises,  and  then  tc 
form  an  opinion  as  to  whether  the  obstruction  complained  of  is 
such  as  to  deprive  the  complaining  party  of  such  a  supi)ly  of  light 
70 


554  LAW  OF   WIXDOW  LIGHTS. 

and  air  as  lie  might  reasonably  calculate  on  enjoying:  Much  must 
depend  on  the  nature  and  locality  of  the  windows,  the  supply  of 
light  which  has  been  interfered  with.  And  it  has  been  some- 
times suggested,  that  persons  who  live  in  towns,  and  more  especi- 
ally in  large  cities,  cannot  expect  to  enjoy  continually  the  same 
unobstructed  volumes  of  light  and  air  as  fall  to  the  lot  of  those 
who  live  in  the  country.  There  would  seem  to  be  weight  in  this 
suo-o-estion,  for  it  is  quite  reasonable  to  make  a  distinction  between 
houses  in  town  and  houses  in  the  country,  as  to  the  extent  ot  the 
rio-ht  of  a  dominant  tenement  to  window  lights,  and  there  are 
authorities  very  strong  in  favor  of  the  doctrine,  although  obstruc- 
tion of  light  rarely  occurs  in  the  country ;  toM'us  are  the  places 
where  light  is  wanted. 

In  respect  to  the  question  with  regard  to  the  extent  of  the  right 
to  window  lights  possessed  by  tenements  used  for  purposes   of 
business,   the   authorities   are    by  no   means   harmonious.     Lord 
Chancellor  Westbury  held  it  essential  for  the  complainant  to  show 
that  the  light  to  his  building  had  been  abridged  to  such  an  extent, 
as  to  detract  from  the  value  of  the  tenement,  considered  as  an 
integral  portion  of  the  premises,  as  materially  to  aifect  the  suita- 
bleness of  those  premises  for  the  purposes   to  which  they  were 
applied  at  the  time  the  obstruction  occurred,  without  regard  to  a 
possible  future  destination  of  the  premises,  which  might  change 
the  wants  of  the  tenement  {Jackson  v.  The  Duke  of  Newcastle 
33  Law  J.,  N.  S.,  Gh.  698).     While  Lord  Chancellor  Cranworth, 
at  a  later  date  took  a  different  view.     He  observed  :  "  An  atten- 
tive consideration  of  the  evidence  of  the  trade  witnesses  on  the 
one  side  and  on  the  other  has  led  me  to  the  conclusion,  as  did  the 
evidence  of  the  architects,  that  the  erection  of  the  new  buildings 
will  materially  interfere  with  the  quantity  of  light  necessary  or 
desirable   for  the   plaintiffs  in  the  conduct  of  their  business,  I 
desire,  however,  not  to  be  understood  as  saying  that  the  plaintiffs 
would  have  no  right  to  an  injunction  unless  the  obstruction   of 
light  were  such  as  to  be  injurious  to  them  in  the  trade  in  which 
they  are  now  engaged.     *     *     *     Therefore,  even  if  the  evidence 
satisfied  me,  which  it  does  not,  that  for  the  purpose  of  their  pre- 
sent business  a  strong  light  is  not  necessary,  and  that  the  plaintiffs 
will  still  have  a  sufficient  light  remaining,  I  should  not  think  the 
defendant  had  established  his  defense  unless  he  had  shown  that, 
for  whatever  purposes  the  plaintiffs  might  wish  to  employ  the 


EXTENT  OF  THE  RIGHT.  555 

light,  there  would  be  no  material  interference  with  it."  It  sho.ild 
be  observed,  however,  that  Lord  Cranworth  considered  the  right 
conferred  or  recognized  by  the  statute  2  and  3  Will.,  4  c,  71,  to  be 
an  absolute  indefeasible  right  to  the  enjoyment  of  the  light  with- 
out reference  to  the  purpose  for  which  it  had  been  used,  and  his 
conclusion  seems  to  have  been  based  somewhat  upon  that  {Yates 
V.  Jack,  L.  7?.,  1  Ch.  295 ;  S.  C,  35  Law  J.  B.,  N.  S.,  Ch.  539). 
Here  is  an  apparent  conflict  of  high  judicial  opinion  upon  the  sub- 
ject, and  it  dues  not  appear  that  any  rule  has  been  settled  by  later 
decisions  in  England.  The  strong  probability,  however  is,  that 
the  rule  which  will  ultimately  be  adopted  under  the  present  laws 
of  parliament  there,  will  be,  that  the  right  to  window  lights 
extends  not  only  to  light  and  air  sufficient  for  the  purposes  for 
which  the  dominant  tenement  is  for  the  time  being  employed,  but 
to  light  and  air  sufficient  for  any  purposes  for  which  it  may  reason- 
ably be  employed.  This  must  be  understood,  however,  as  apply- 
ing to  the  tenement  in  use  at  the  time  the  right  to  light  and  air 
matured.  The  purposes  of  the  premises  cannot  be  changed,  so 
that  more  light  may  be  required  than  was  originally  enjoyed. 
Said  Macdonald,  C.  B.,  in  a  leading  English  case :  "  It  was  not 
enough  that  the  windows  were,  to  a  certain  degree,  darkened  by 
this  wall,  which  the  defendant  had  erected  on  his  own  ground. 
The  house  was  entitled  to  the  degree  of  light  necessary  for  a  malt- 
house,  not  for  a  dwelling-house.  Tl.ie  converting  it  from  the  one 
to  the  other  could  not  affect  the  rights  of  the  owners  of  the  adjoin- 
ing ground  "  {Martin  v.  GoUe,  \  Camp.  R.,  320  ;  and  vide  Gar- 
ritt  V.  Sharpe,  3  Adolph.  &  Ell.  R.,  325).  And  said  Wood,  V. 
C,  in  a  late  case,  in  approving  the  judgment  of  Lord  Cranworth, 
before  referred  to :  "  The  Lord  Chancellor's  observations  might 
apply  to  the  user  of  a  house  as  it  stands  for  any  purpose  to  which 
it  might  be  applied  in  that  condition,  not  to  the  user  of  a  house 
where  its  whole  character  has  been  changed,  and  it  has  been 
rebuilt "  {Deiit  v.  The  Auction  Mart  Company,  L.  12.,  2  Eq.,  249 ; 
S.  a,  35  Zaio  J.  R.,  N.  S.,  Ch.,  563). 

It  has  also  been  repeatedly  decided  by  the  English  courts,  that 
the  owner  of  the  dominant  tenement  is  not  entitled  to  the  unin- 
terrupted access  of  more  light  and  air  than  other  persons  find 
sufficient  for  the  same  business.  And  again,  where  the  persons 
entitled  to  the  enjoyment  of  the  light  have  at  times  lessened  the 
amount  of  light  which  has  access  to  their  premises,  they  are  not 


53G  LAvr  OF  wiynow  lights. 

limited  to  the  minimnm  quantity  which  they  have  used,  but  will 
be  entitled  to  an  uninterrupted  supply  of  the  full  quantity  to 
which  they  were  originally  entitled.  Said  Lord  Cranworth,  in  a 
ease  before  referred  to  :  "  The  evidence  satisfies  me  that  for  some 
purposes  of  their  (the  plaintiffs')  trade  it  is  necessary  at  times  to 
exclude  the  direct  rays  of  the  sun,  and  that  in  what  is  called 
sampling,  a  subdued  light  may  be  better  than  direct  sunlight. 
But  this  is  not  the  question.  It  is  comparatively  an  easy  thing 
to  shade  oft'  a  too  powerful  glow  of  sunshine,  but  no  adequate 
substitute  can  be  found  for  a  deficient  supply  of  da^'light"  (  Yates 
v.  Jack,  L.  B.,  1,  Ch.  297:  S.  C,  35  Law  B.,  iV".  S.,  C/i.  543). 
x\nd  said  Wood,  V.  C,  in  a  case  before  referred  to :  "  Every  now 
and  then  where  the  light  is  too  much,  people  pull  dowti  their 
blinds  ;  but  that  is  no  reason,  because  they  accommodate  the  light 
to  their  work,  that  they  should  be  deprived  of  it  at  all  times  " 
{De7ii  V.  The  Auction  Mart  Company,  L.  R.,  2  -Eq.,  251 ;  S.  C, 
35  Zaw  J.  R.,  iY.  S.,  Ch.,  564). 

The  right  to  the  enjoyment  of  light  and  air,  may  be  lost,  how 
ever,  after  it  has  been  acquired,  and  the  general  remark  may  be 
made,  that  the  modes  of  the  loss  of  the  right  correspond  to  the 
modes  of  its  acquisition.  Where  the  right  is  acquired  by  occu- 
pancy, it  may  be  lost  by  abandonment ;  when  by  express  grant, 
it  may  be  lost  by  express  release,  and  when  by  implied  grant  from 
the  disposition  of  the  owner  of  two  tenements,  it  may  be  lost  by 
a  union  of  the  two  tenements.  These  general  observations  will 
give  a  fair  understanding  of  this  branch  of  the  subject,  but  it  will 
be  made  plainer  by  a  reference  to  a  few  leading  authorities. 

In  respect  to  the  loss  of  the  right  to  window  lights  by  aban- 
donment, Lord  Ellenborough  observed  in  disposing  of  a  case  before 
him  at  nisi prius :  "  Where  a  window  has  been  shut  up  for  twenty 
years,-  the  case  stands  as  though  it  had  never  existed"  {Lawrence 
V.  Ohee,  3  Camp.  R.,  514).  And  it  is  well  settled  that  a  cessa- 
tion of  the  enjoyment  of  the  right  for  a  much  shorter  period  will 
put  an  end  to  it,  if  the  intention  of  the  owner  of  the  dominant 
tenement  to  abandon  it  be  manifest.  Said  the  court  in  one  case: 
"  There  is  nothing  unreasonable  in  holding  that  a  right  which  is 
gained  by  occupancy  should  be  lost  by  abandonment"  {Liggins  v. 
Inge,  7  Bing.  R.,  693).  But  the  subject  was  elaboratel}'  con- 
sidered at  a  later  date  in  the  English  Court  of  King's  Bench,  in  a 
case  which  is  often  quoted  and  recognized  as  a  leading  authority 


JTOTl'  THE  RIGHT  IS  LOST.  557 

upon  the  point.  A  verdict  was  directed  for  the  plaintiff  in  the 
case,  but  a  riglit  was  reserved  to  the  defendant  to  move  to  enter  a 
nonsuit,  and  in  deciding  the  inotion,  Abbott,  Ch.  J,,  said:  "It 
seems  to  me,  that  if  a  person  entitled  to  ancient  lights  pulls  down 
his  house  and  erects  a  blank  wall  in  the  place  of  a  wall  in  which 
there  had  been  windows,  and  suffers  that  blank  wall  to  remain  for 
a  considerable  period  of  time,  it  lies  on  him  at  least  to  show,  that 
at  the  time  when  he  so  erected  the  blank  wall,  and  thus  appa- 
rently abandoned  the  windows  which  gave  light  and  air  to  the 
house,  that  was  not  a  perpetual,  but  a  temporary  abandonment  of 
the  enjoyment;  and  that  he  intended  to  resume  the  enjoyment  of 
these  advantages  within  a  reasonable  time."  Bayley,  J.,  said : 
"  The  right  to  light,  air,  or  water,  is  acquired  by  enjoyment ;  and 
will,  it  seems  to  me,  continue  so  long  as  the  party  either  continues 
that  enjoyment,  or  shows  an  intention  to  continue  it.  I  think 
that,  according  to  the  doctrine  of  modern  times,  we  must  con- 
sider the  enjoyment  as  giving  the  right ;  and  it  is  a  wholesome 
qualification  of  the  rule  to  say,  that  the  ceasing  to  enjoy  destroys 
the  right,  unless  at  the  time  when  the  party  discontinues  the 
enjoyment  he  does  some  act  to  show  that  he  means  to  resume  it 
within  a  reasonable  time."  And  Littledalc,  J.,  said:  "  The  right 
is  acquired  by  mere  occupancy,  and  ought  to  cease  when  the  per- 
son who  so  acquired  it  discontinues  the  occupancy  "  {Jloore  v. 
Eawson,  3  Barn.  &  Ores.  R.,  332  ;  S.  C,  10  Eng.  C.  L.  It.,  99). 
It  has  been  sometimes  contended  that  the  privilege  of  ancient 
windows  is  lost  by  alteration  or  improvement  of  the  frame  work 
and  glazing,  without  either  their  size,  shape,  or  position  being 
altei-ed.  But  the  doctrine  of  abandonment  has  never  been  car- 
ried to  this  extent.  If  the  owner  makes  alterations  merely  in  the 
framework  or  glazing  of  his  window,  not  altering  the  position  or 
the  size  of  the  apperture  in  the  building,  he  has  a  right  to  do  so 
Avithout  losing  his  privilege  {Jackson  v.  Duke  of  Newcastle^  33 
Law  J.  R.,  ]V.  S.,  Ch.  702 ;  and  vide  Turner  v,  Spoone?',  1  Drew. 
<&  SmaWs.  R.,  473  ;  Renshaw  v.  Bean,  18  Queen'' s  Bench  i?.,  112  ; 
Iltitchinson  v.  Copestake,  8  Com.  Bench  R.,  N.  S.,  102;  S.  C,  9 
ih.,  863;  Martin  \.  Ileadon,  11  Jur.  i\.  S.,  5;  WeatherUj  v. 
Ross,  1  //.  (]&  M.  R.,  349  ;  Tapling  v.  Jones,  11  House  of  L.  Cas., 
290 ;  S.  C,  34  Law  J.  R.,  N.  S.,  C.  P.,  342 ;  S.  C,  12  Com.  B. 
R.,  N.  S.,  826).  The  doctrine  is  well  settled  that  where  the  right 
to  window  lights  is  acquired  by  occupancy,  it  may  be  lost  by 


558  -^^^^  0^  wnyDow  lights. 

abandonment,  and,  under  certain  circumstances,  the  alteration  of 
the  windows  of  the  dominant  premises  gives  a  right  to  obstruct 
the  light,  but  where  this  alteration  leaves  the  servitude  imposed 
on  the  other  tenement  unaffected  or  diminished,  no  right  will  be 
lost  by  the  alteration. 

In  respect  to  the  loss  of  the  right  to  window  lights  by  express 
release,  it  may  be  affirmed  that  in  order  to  effect  the  extinguish- 
ment by  this  means,  a  release  under  seal  is  requisite,  upon  the 
same  principle  that  the  right  can  only  be  acquired  in  the  first 
place,  except  by  a  grant  or  covenant  under  seal.     And  in  the  third 
place,  the  right  to  window  lights  may  be  lost  by  unity  of  posses- 
sion ;  that  is,  where  the  dominant   and   the   servient   tenement 
become  the  property  of  the  same  owner,  the  right  to  light  and 
air,  enjoyed  by  the  one  over  the  other,  is  extinguished.     It  is  a 
rule  in  respect  to  all  easements,  that  where  the  title  to  the  dom- 
inant estate  and  to  the  servient  estate  unite  in  a  common  owner, 
the  easement  is  merged  and  lost.     But  in  order  that  the  unity  of 
possession  of  the  two  tenements  should  have  this  effect,  the  owner 
in  whom  they  are  united  must  have  an  equally  high  and  perdura- 
ble estate  in  fee  simple  in  tlie  one  as  in  the  other,  in  the  domin- 
ant as  in  the  servient  tenement.     Otherwise  the  easement,  though 
necessarily  suspended  so  long  as  the  union  of  ownership  continues, 
is  not  extinguished,  but  revives  on  a  severance  of  the  ownership 
{Sim2)er  v.  Foley,  2  Johns,  d;  Hemming' s  R.,  563).     However,  if 
the  unity  of  possession  is  in  a  common  owner,  on  separate  con- 
veyances of  the  estates  by  such  owner,  the  easement  is  not  revived, 
nor  treated  as  having  existed  during  the  time  the  two  estates  were 
m  the  common  owner,  but  are  re-created  by  the  conveyance  of  the 
estate  separately,  and  arise  from  an  application  of  the  fiimiliar 
principle,  that  whoever  grants  a  thing,  impliedly  grants  whatever 
may  be  necessary  for  the  beneficial  enjoyment  of  the  thing  granted 
{ikller  V.  Lapham,  44  Vt.  12.,  416).     Unity  of  seisin  is  suflicient 
of  itself  to  cause   the  extinguishment   of  an   easement  without 
actual    unity  of   occupation    {Stall  v.  Stall,  16  Fasfs  R.,   343; 
Clayton  v.  Corhy,  2  Gale  <&  Dav.  R.,  174).     But  the  momentary 
seisin  of  a  release  to  uses  has  been  held  not  to  operate  to  extin- 
guish an  easement  by  unity  of  seisin  {James  v.  Plank,  4  Adolph. 
<&  Ell.  R.,  766).     It  may  be  observed  that,  liowever  the  right  to 
window  lights  may  have  been  acquired,  the  same  maybe  extin- 
guished or  lost  in  either  of  the  ways  herein  described.     In  tliose 


TUE  RIGHT  UyDER  SPECIAL  COVEyAXTS.  559 

States  where  the  rio^ht  cannot  be  acc^uired  by  occupancy  or  implied 
grant,  the  right,  when  ac(piired  in  tlie  way  recognized  in  such 
States,  may  be  extinguished  or  lost  by  abandonment,  or  the  union 
of  the  dominant  and  the  servient  tenements  in  the  same  owner. 

A  few  additional  remarks  may  be  necessar^^  in  respect  to  the 
enjoyment  of  the  right  to  light  and  air  under  special  covenants 
from  the  owner  of  the  servient  estate.  In  most  cases,  where  it 
has  been  desired  to  secure  the  enjoyment  of  the  right  to  window 
lights  by  an  express  agreement,  the  object  has  been  attained  by 
the  owner  of  the  adjoining  land  entei'ing  into  covenants  restrict- 
ing him  from  using  his  land  in  a  certain  specified  manner;  not  by 
a  simple  covenant  that  he  will  not  interfere  with  his  neighbor's 
right  to  such  window  lights.  These  covenants  will  not,  except  as 
between  landlord  and  tenant,  run  with  the  land  so  as  to  bind  it  in 
the  hands  of  an  assignee.  This  subject  has  been  briefly  referred 
to  in  a  previous  chapter.  In  order  to  enforce  such  an  agreement 
as  against  assignees,  recourse  must  be  had  to  a  court  oi  equity, 
where  an  adequate  remedy  may  be  had,  provided  the  parties  had 
notice  of  the  covenants,  in  respect  to  the  right.  The  principle  on 
which  courts  of  equity  will  enforce  such  covenants  on  an  owner 
of  the  servient  property,  who  at  law  would  be  unaffected  thereby 
is,  that  as  he  has  notice  of  tlie  restrictions  to  which  the  land  was- 
subject  under  such  covenants  in  the  hands  of  the  person  from 
whom  he  purchased,  his  conscience  is  affected  thereby,  and  he  can- 
not be  permitted  to  use  the  land  in  a  manner  inconsistent  there- 
with. This  doctrine  has  been  well  settled  by  numerous  decisions 
of  the  courts,  although  but  few  cases  can  be  found  wherein  the 
precise  question  of  the  right  to  window  lights  was  involved.  But 
the  general  doctrine  is  imiformly  recognized,  that  a  covenant 
which  at  law  will  not  run  with  the  land,  is  binding  in  ecjuify  upon 
an  assignee  with  notice,  except  in  the  presence  of  special  circum- 
stances which  would  render  it  inequitable  to  enforce  the  covenant 
{Vide  Talk  v.  Moxhay,  11  Beav.  A*.,  571;  Whitman  v.  Gibson, 
9  Slia.  12.,  190  ;  Afann  v.  Stejjhens,  15  ib.,  377).  Courts  of  equity 
will,  however,  act  with  caution  in  enforcing  covenants  of  this 
nature,  and  will  neither  too  hastily  infer  their  existence,  nor  M'ill 
extend  their  operation  beyond  what  the  construction  of  the 
instrument  requires  {J^eqfees  of  Ileriofs  Hospital  v.  Gibson,  2 
Dow  /?.,  301).  And  of  course  a  court  of  equity  will  not  strain 
the  natural  expression  of  the  terms  of  the  covenant,  for  tne  bene- 


5 GO  -^^'^"'   0^   WINDOW  LIGHTS. 

fit  of  tlie  covenantees  {Vide  Schreiher  v.  Creed,  10  Sim.  12.,  9; 
ratchln  V.  Diilhlns,  1  Kaijs  IL,  1). 

It  has  been  declared  by  the  English  Court  of  Chancery,  that 
where  land  has  been  conveyed  sul»ject  to  a  covenant  that  the  pur- 
chaser sh;ill  not  nse  the  land  conveyed  to  hiin  in  a  particular  man- 
ner, such  restriction  being  imposed  witli  a  view  to  the  enjoyment 
of  adjoining  lands  by  the  vendor,  and  the  character  of  these 
adjoining  lands  is  so  altered  by  the  acts  of  the  vendor  and  those 
claiming  under  him  that  tlie  restriction  is  no  longer  applicable 
accoi-ding  to  the  intent  and  spirit  of  the  covenant,  a  court  of 
equity  will  not  interfere  to  enforce  the  covenant  {The  Dxike  of 
Bedford  v.  The  Trustees  of  the  British  Museum,  2  M.  <&  R.  R., 
552).  On  a  similar  principle,  a  court  of  ecpiity  will  not  lend  its 
assistance  to  enforce  covenants  of  this  nature,  where  the  covenants 
were  intended  to  secure  the  erection  of  buildings  on  one  general 
plan  for  the  common  benefit  of  the  occupiers  of  all  the  buildings, 
and  the  covenantee  has  acquiesced  in  such  deviations  from  this 
plan,  as  will  prevent  the  intended  general  benefit  {Vide  Roper  v. 
Williams,  Turner  &  RusseWs  B.,  18).  But  this  doctrine  will 
not  be  sti-ained  in  order  to  include  cases  in  M'hich  the  covenants 
do  not  really  form  part  of  one  plan  {Patchin  v.  Duhhins, 
supra).  The  defense,  that  the  plaintiff  has  acquiesced  in  the 
infringement  of  a  general  plan  for  the  common  benefit,  cannot  be 
laised  where  the  question  lies  solely  between  covenantor  and  cov- 
enantee. But  in  these  cases  if  there  be  acquiescence  on  the  part 
of  the  covenantee  in  the  breach  of  the  covenant,  or  delay  by  him 
in  complaining  thereof,  the  court' will,  on  its  ordinary  principle, 
refuse  to  interfere  in  his  behalf  {Roper  v.  Williams,  supra; 
Coles  V.  Sims,  1  Kaifs  B.,  5G ;  S.  C,  5  Be  Gex.,  M.  &  Gor. 
B.,  1). 


CHAPTER  XLIX. 

THE  REMEDIES  FOR  INJURIES  TO  THE  RIGHT  TO  WINDOW  LIGHTS THE 

REMEDY  BY  ACTION  AT  LAW  —  REMEDY    BY    SUIT    IN    EQUITY THE 

EVIDENCE  IN  SUCH  CASES. 

There  are  practically  two  remedies  for  the  obstruction  to  the' 
right  to  window  lights,  viz,  by  action  at  law,  and  a  suit  in  equity. 


THE  REMEDY  AV  SUCH  CASES.  5G1 

In  early  times,  another  remedy  was  applied  in  such  cases,  viz, 
abatement  by  the  party  injured,  but  this  was  always  attended 
with  violence,  and  has  long  since  tallen  into  disuetude  in  all  civil- 
ized countries. 

The  action  at  law  for  injury  to  the  right  to  window  lights  may 
be  brought  by  the  party  in  possession  of  the  dominant  tenement  for 
the  disturbance  of  his  enjoyment,  however  temporary  its  charac- 
ter, and  the  reversioner  may  also  sue  if  the  injury  be  of  a  permanent 
character  and  detrimental  to  the  inheritance.  This  doctrine  is 
well  settled  by  analogous  cases,  both  English  and  American  (  Vide 
Wells  v.  Odey,  1  Mees.  i&  Wels.  /?.,  452 ;  Foley  v.  Wyeih,  2 
Alle7i's  7?.,  135).  To  enable  the, reversioner  to  bring  the  action, 
the  injury  must  be  of  a  permanent  nature;  but  it  will  be  con- 
sidered to  be  so,  if  it  be  such  as  may  possibly  be  detrimental  to 
the  reversioner's  title,  or  afford  evidence  against  the  existence  of 
the  right  {Shadwell  v,  Ilutehinson,  2  Barn.  &  Adolph.  7?.,  1)7  ; 
Jesson  v.  Gifford,  4  Bur.  B.,  2141 ;  Ilopvjood  v.  Sehofield,  2 
Mood,  dh  Bob.  B.,  34 ;  Metropolitan  Association  v.  Patch,  27 
Law  J.  B.,  N.  S.,  a  P.,  330  ;  Bower  v.  Hill,  1  Bing.  lY.  C, 
555).  The  action  may  be  brought  either  against  him  who  erects 
the  nuisance,  or  against  him  who  continues  it  when  erected.  If 
the  owner  of  premises  erect  an  obstruction  to  his  neighbor's 
ancient  lights,  and  then  demise  his  premises  in  that  condition,  he 
is  liable  if  the  obstruction  is  continued  by  his  tenant  {Boswell  v. 
Prior,  2  Salk.  B.,  460;  Vide  Jones  v.  Williams,  11  Mees.  (& 
Wels.  B.,  176  ;  Bex  v.  Pedley,  1  Adolph.  i&  Ell.  B.,  827). 

In  respect  to  the  remedy  in  these  cases  by  suit  in  equity,  the 
courts  are  more  liberal  at  present  than  formerlj'.  It  was  once 
almost  uniformly  held  in  England,  that  a  court  of  equity  would 
not  grant  relief  for  an  injury  to  the  right  to  window  lights,  until 
the  right  had  been  determined  by  a  court  of  law  ;  and  though 
occasionally  the  court  would  interfere  by  injunction,  before  the 
determination  of  the  legal  right,  yet  instances  of  such  interfer- 
ence were  very  rare.  Courts  of  equity  gradually  extended  the 
exercise  of  their  jurisdiction  in  such  cases,  until  1834,  when  Lord 
Brougham,  the  High  Chancellor  stated  the  principles  on  which 
tlie  court  then  acted,  as  follows :  "  If  the  thing  sought  to  be  pro- 
hibited is  itself  a  nuisance,  the  court  will  interfere  to  stay  irrepara- 
ble mischief,  without  waiting  for  the  result  of  a  trial ;  and  will,, 
according  to  the  circumstances,  direct  an  issue  of  allow  an  action,. 
71 


•jbz  LAW  OF   Wn\I)OW  LIGHTS. 

and,  if  need  be,  expedite  the  proceedings,  the  injunction  being  in 
the  meantime  continued.  But  where  the  thing  sought  to  be 
restrained  is  not  unavoidably  and  in  itself  noxious,  but  only  some- 
thing which  ma}^,  according  to  circumstances,  prove  so,  the  court 
will  refuse  to  interfere  until  the  matter  has  been  tried  at  law, 
generallj^  by  an  action,  though  in  particular  cases,  an  issue  may 
be  directed  for  the  satisfaction  of  the  court,  where  an  action  could 
not  be  framed  to  suit  the  question.  It  is  always  to  be  borne  in 
mind  that  the  jurisdiction  of  this  court  over  nuisance  by  injunc- 
tion at  all  is  of  recent  growth,  has  not  until  very  lately  been  much 
■exercised,  and  has  at  various  times  found  great  reluctance  on  the 
•part  of  the  learned  judges  to  use  it,  even  in  cases  where  the  thing 
or  act  complained  of  was  admitted  to  be  directly  or  indirectly 
hurtful  to  the  complainant"  {Earl  of  Rijpon  v.  Ilobart,  3  Myl. 
(&  Keeyi's  i?,,  179).  On  these  principles,  a  court  of  equity  would 
■seldom  be  called  upon  to  exercise  its  jurisdiction  in  cases  of  ordi- 
nary obstruction  of  window  lights ;  but  a  great  change  has  been 
made  in  the  power  of  courts  of  equity  to  decide  questions  of  this 
■nature  in  England,  by  an  act  of  parliament,  and  in  this  country, 
■courts  of  equity  are  more  inclined  to  interfere  in  cases  of  this  de- 
scription, at  the  present  day  than  formerly.  It  has  now  become  a 
familiar  rule  here,  that  an  injunction  will  be  granted  to  prevent 
and  restrain  a  nuisance,  and  it  will  be  allowed  at  the  instance  of 
the  individual  who  sustains  a  special  injury  from  it.  This  doc- 
trine applies  to  the  ordinary  case  of  obstruction  to  window  lights, 
where  the  right  to  the  same  has  been  acquired.  The  owner  or 
occupant  of  the  servient  tenement  is  under  obligation  not  to  inter- 
fere unnecessarily  and  essentially  with  the  right,  and  obstructing 
the  light  would  be  a  violation  of  the  obligation,  a  continuance  of 
which  violation  a  court  of  equity  may  interpose  to  prevent,  and 
not  only  to  prevent,  but  to  compensate  in  damages  for  any  injury 
sustained;  for  it  is  a  settled  principle  that  a  court  of  equity  hav- 
ing acquired  jurisdiction  of  the  subject-matter  of  the  action,  may 
make  complete  reparation  to  the  parties  {Story^s  Eq.  Jur.^  §§  796, 
797).  In  regard  to  private  nuisances,  the  interference  of  courts 
■of  equity  by  way  of  injunction,  is  undoubtedly  founded  upon  the 
ground  of  restraining  irreparable  mischief,  or  of  suppressing 
■oppressive  and  interminable  litigation,  or  of  preventing  multi- 
plicity of  suits.  But  Judge  Story  says  "  there  must  be  such  an 
injury  as  from  its  continuance  or  permanent  mischief,  must  occa- 


THE  REMEDY  IN  SUCH  CASES.  563 

61  on  a  constantly  recurring  grievance,  wliich  cannot  be  otherwise 
prevented  but  by  injunction  ;"  and  lie  enumerates  the  destruction 
of  water-courses  as  being  of  that  description  {Stori/''s  £'q.  Jur., 
§§  925,  927).  And  as  pertinent  to  this  subject,  it  may  also  be 
observed,  that  it  has  been  frequently  decided  that  courts  of  equity 
have  concurrent  jurisdiction  with  courts  of  law,  in  a  case  of  pri- 
vate nuisance  for  diverting  or  obstructing  an  ancient  water-course, 
and  may  issue  an  injunction  to  prevent  the  interruption  {Gardner 
V,  Newhurgh,  2  Johns.  Ch.  i?,.  162 ;  Van  Bergen  v.  Van  Bergen^ 
lb.,  272;  Belknap  v.  Belknap,  lb.,  4:63  ;  Case  v.  Haight,  3  Wend. 
R.,  632  ;  Arthur  v.  Case,  1  Paige's  R.,  447).  Cases  of  obstruc- 
tion to  window  lights  are  within  these  principles.  Actions  at  law 
will  seldom  do  full  justice  or  afford  ample  relief  in  such  cases  ; 
the  injury  is  usually  irreparable  and  the  damage  cannot  be  ade- 
quately ascertained  or  recovered  in  an  action. 

But  the  doctrine  has  actually  been  settled  in  cases  involving  the 
precise  question  of  obstructing  light  and  air.  In  a  recent  case 
before  the  New  York  Common  Pleas,  relief  was  granted.  The 
facts  were  these :  "  The  plaintiff  owned  two  lots  in  the  city  of 
New  York,  upon  the  rear  of  which  there  was  a  house  and  lot 
fronting  on  a  street,  in  which  the  plaintiff  resided  ;  and  being 
such  owner,  he  entered  into  a  contract  to  sell  the  defendant  one 
of  the  first-mentioned  lots,  adjoining  the  one  occupied  by  the 
plaintiff  as  a  residence.  The  agreement  of  sale  contained  a  stipu- 
lation that  the  deed  of  said  lot  should  contain  "  a  restriction 
against  erecting  any  building  on  the  same  within  fifteen  feet  of 
the  rear  line,  and  the  usual  restrictions  against  nuisances."  Under 
this  agreement  the  defendant  took  possession  of  the  lot  contracted 
to  him,  and  shortly  before  the  commencement  of  the  action  he 
placed  boards  and  other  material  near  said  rear  line,  and  threat- 
ened to  build,  and  began  to  erect  a  wall  or  fence  within  the  inter- 
dicted line,  and  directly  in  front  of  the  windows  in  the  plaintiff's 
dwelling,  in  such  a  manner  as  to  obstruct  the  lights,  and  destroy, 
or  greatly  injure  the  plaintiff's  house  as  a  dwelling.  The  court 
held,  that  the  intent  of  the  parties  was  that  the  fifteen  feet  space, 
provided  for  in  the  agreement,  should  be  left  open,  to  afford  light 
and  air  upon  that  side  to  the  building  on  the  rear  of  the  adjoin- 
ing lot,  and  that  to  allow  the  defendant  to  put  up  the  fence 
referred  to,  w^ould  be  in  direct  contradiction  of  the  intent  y^i  the 
parties  as  expressed  in  the  instrument.     An  injunction  was,  there- 


564  J^^'^^   ^^   WINDOW  LIGHTS. 

fore,  granted  restraining  the  defendant  from  erecting  the  fence 
(  Wrirj/it  V.  £:m?is,  2  Ahb.  B.,  N.  S.,  308). 

Of  course,  it  is  not  every  obstruction  to  window  lights,  which 
will  justify  a  court  of  equity  to  interfere  by  injunction.  In  order 
to  justify  an  injunction,  the  obstruction  must  be  of  such  .t  charac- 
ter as  to  affect  the  comfort  of  those  dwelling  in  t'lo  house  upon 
the  dominant  premises,  or  to  make  the  occupation  of  the  housu 
less  beneficial  for  purposes  of  business.  Said  Lord  Eldon,  in  tho 
English  Court  of  Chancery:  "The  foundation  of  this  jurisdic- 
tion, interfering  by  injunction,  is  that  sort  of  mischief  alluded  to 
by  Lord  Hardwicke,  that  sort  of  material  injury  to  tlie  comfort 
of  the  existence  of  those  who  dwell  in  the  neighboring  house, 
requiring  the  application  of  a  power  to  prevent,  as  well  as  remedy 
an  evil,  for  which  damages  more  or  less  would  be  given  in  an 
action  at  law.  The  position  of  the  building,  whether  opposite,  at 
right  angles,  or  oblique,  is  not  material.  The  question  is,  whether 
the  effect  is  such  an  obstruction  as  the  party  has  no  right  to  erect, 
and  cannot  erect  without  those  mischievous  consequences  which 
upon  equitable  principles  should  be  not  only  compensated  by 
damages,  but  prevented  by  injunction"  {The  Attorney- General  v. 
Nichol,  16  Ves.  R.,  341).  And  Lord  Westbury,  in  the  same  high 
court,  made  the  same  distinction,  saying:  "It  is  not  in  every  case 
in  which  an  action  can  be  maintained  for  the  obstruction  of 
ancient  lights  that  an  injunction  will  be  granted  by  a  court  of 
equity.  Something  more  is  required  than  that  amount  of  injury 
for  which  damages  may  be  recovered  at  law.  As  observed  by 
Lord  Eldon,  this  court  will  not  interfere  upon  every  degree  of 
darkening  ancient  lights  and  windows ;  but  the  standard  of  the 
amount  of  damage  that  calls  for  the  exercise  of  the  jurisdiction  to 
to  grant  preventive  relief  or  to  prohibit  the  continuance  of  the 
nuisance,  has  not  been  defined  with  any  certainty.  *  *  * 
"Where  the  obstruction  of  the  ancient  lights  of  a  manufactory  or 
business  premises  renders  the  buildings  to  a  material  extent  less 
suitable  for  the  business  carried  on  in  them  it  is,  in  my  judgment, 
a  case  for  an  injunction,  and  not  merely  for  compensation  in  dam- 
ages. The  foundation  appears  to  be,  that  injury  to  property 
which  renders  it  to  a  material  degree  unsuitable  for  the  purposes 
to  which  it  is  now  applied,  or  lessens  considerably  the  enjoyment 
which  the  owner  now  has  of  it.  The  court  considers  that  injury 
of  this  nature  docs  not  admit  of  being  measured  and  redressed  by 


THE  REMEDY  IN  SUCH   CASES.  565 

damaf^es  "  {Jackson  v.  The  Duke  of  Newcastle,  33  Zaw  J.  i?.,  iV. 
S.,  C)i.,  698).  It  seems  now  to  be  well  settled,  that  a  court  of 
equity  will  interfere  to  protect  the  right  to  window  lights  by 
injunction,  on  the  simple  ground  of  preventing  damage  to  the 
property,  and  will  not  require  a  case  of  injury  to  personal  comfort 
or  convenience  to  be  made  out  as  preliminary  to  obtaining  its 
assistance  ( Vide  Wilson  v.  Townend,  1  Dreto  cfc  Sniales  li.,  327). 
It  may  be  suggested,  that  the  ordinary  form  of  injunction  is  tc 
restrain  something  intended  or  threatened  by  the  defendant.  But 
courts  of  equity  have  a  still  more  powerful  remedy,  the  tnanda- 
iory  injunction.  By  this  they  can  compel  a  defendant  to  undo 
what  he  has  already  done;  and  this  power  may  be  exercised  in 
cases  of  obstruction  to  window  lights.  This  doctrine  is  now  fully 
established,  although  in  a  recent  case  in  the  English  Court  of 
Chancery,  the  Master  of  the  Rolls  decided  that  the  court  could 
not  exercise  jurisdiction  in  a  case  of  obstructing  ancient  lights,  and 
grant  a  mandatory  injunction  to  remove  the  obstruction.  He  con- 
sidered, laying  aside  any  ingredient  of  fraud,  the  rule  of  equity 
to  be,  "  that  if  the  injury  was  complete,  if  it  was  done  and  alto- 
gether finished,  so  that  this  court  could  not  grant  the  injunction 
when  the  bill  was  first  filed,  then  equity  had  no  cognizance  of  the 
matter "  {Durell  v.  Pritchard,  34  Lam  J.  R.,  N.  S.,  CL,  599). 
But  on  appeal,  the  Lord  Justices  expressly  negatived  the  existence 
of  any  such  rule,  although  they  affirmed  the  decision  of  the  Mas- 
ter of  the  Rolls  on  other  grounds.  Turner,  Lord  Justice,  after 
examining  the  rule  laid  down  by  the  Master  of  the  Rolls,  and  the 
authorities  upon  the  point,  said:  "I  cannot,  therefore,  venture  to 
go  as  far  as  the  Master  of  the  Rolls  appears  to  have  gone  in  this 
case,  or  to  say  that  relief  by  way  of  injunction  ought  to  have  been 
refused  in  this  case  upon  the  mere  ground  that  the  damage  had 
been  completed  before  the  bill  was  filed.  The  authorities  upon 
this  subject  lead,  I  think,  to  these  conclusions :  That  every  case 
of  this  nature  must  depend  upon  its  own  circumstances,  and  that 
this  court  will  not  interfere  by  mandatory  injunction  except  in 
cases  in  which  extreme,  or,  at  all  events,  very  serious  damage  will 
result  from  its  interference  being  withheld  "  {Durell  v.  Pritchard, 
Z.  /?.,  1  6%.,  250 ;  S.  C,  35  Laio  J.  /?.,  N.  S.,  Ch.  225).  It  should 
be  stated,  however,  that  the  court  will  not  grant  a  mandatory 
injunction  on  an  interlocutory  application.  Said  Kindersley,  V. 
C. :  "  It  was  useless  to  come  for  what  was  called   a   mandatory 


566  i^TT  OF  WINDOW  LIGHTS. 

injunction  on  an  interlocutory  application.  The  court  would  not 
compel  a  man  to  do  so  serious  a  thing  as  to  undo  what  he  had 
done,  except  at  the  hearing"  {Gale  v.  Ahhott,  8  Jur.  N.  8.,  988; 
ajid  vide  llyder  v.  Bentham,  1   Ves.  Sen.  H.,  543). 

Wliere  the  right  to  window  lights  is  admitted  or  duly  estab- 
lished, evidence  must  then  be  produced  to  show  that  the  right  has 
suflered  injury.  The  point  which  the  plaintiff'  has  to  prove  in 
cases  of  this  kind  is,  that  his  supply  of  light  and  air  will  be  so 
reduced  by  the  operations  of  the  defendant  as  to  render  his  house 
uncomfortable  for  occupation,  or  less  fit  for  the  carrying  on  there 
of  his  accustomed  business.  This  has  been  sufficiently  illustrated 
and  explained  in  a  previous  chapter.  The  evidence  brought  for- 
ward by  tiie  plaintiff  and  defendant  respectively  to  prove  and  dis- 
prove the  point,  is  said  to  fall  into  two  classes.  Firstly,  evidence 
of  witnesses  as  to  the  actual  effect  produced  by  the  operations 
complained  of;  and  secondly,  evidence  as  to  the  amount  of  sky 
area  of  which  the  plaintiff  lias  been  or  will  be  deprived  by  those 
operations,  the  court  drawing  its  conclusions  as  to  the  effect  on 
the  plaintiff's  premises  of  this  amount  of  deprivation.  In  regard 
to  the  first  class  of  evidence,  it  has  been  before  shown  that  the 
courts  pay  no  regard  to  the  evidence  given  by  other  persons 
engaged  in  the  same  business  as  the  plaintiff,  that  they  are  able 
to  carry  on  that  business  with  no  greater  amount  of  light  than 
the  plaintiff"  still  has  left  after  the  operations  of  the  defendant. 
This  proposition  is  abundantly  sustained  by  authorities  before 
referred  to,  and  the  argument  need  not  be  repeated  here.  In 
respect  to  the  second  class  of  evidence,  it  has  been  properly  said, 
that  it  consists  of  information  as  to  the  height  and  width  of  former 
buildings  now  removed  or  proposed  to  be  removed,  and  their  dis- 
tance from  the  plaintiff's  premises ;  and  of  similar  information 
with  respect  to  new  buildings  erected  or  proposed  to  be  erected, 
and  after  deductions  drawn  by  scientific  men  from  this  informa- 
tion ;  the  real  object  of  all  which  is  to  obtain  an  accurate  estimate 
of  the  amount  of  sky  area  which  the  plaintiff'  formerly  enjoyed, 
and  of  Avhich  lie  will  be  deprived.  Said  Kindersley,  Y.  C,  in  a 
recent  case:  "The  only  value,  as  it  appears  to  me,  in  all  these 
cases  of  the  question  what  is  the  distance  of  the  intended  new 
building  from  the  building  in  question,  or  the  skylight  in  ques- 
tion ;  or  what  is  the  height  of  that  new  building  at  that  distance ; 
or  what  is  the  width  of  that  new  buildins;  at  that  distance  ?  The 


THE  EVIDENCE  IN  SUCH  CASES.  567 

jnly  value  of  all  these  considerations  is,  that  tliey  constitute  dat9 
from  which  you  are  to  measure  tlie  area  of  sky  wliich  will  be  shut 
out  by  the  new  buildings.  That  is  the  only  real  value  of  them  ; 
of  course  it  is  very  necessary  to  be  tolerably  accurate  for  that  pur- 
pose. But  the  object  is  to  measure  the  area  of  sky  whicrh  the 
defendant's  buildings  will  sliut  out  from  the  plaintiff's  ancient 
windows  or  ancient  lights.  And  when  I  say  the  amount  of  sky 
which  the  defendant's  building  will  shut  out,  of  course  it  must 
mean  the  area  of  sky  which  it  will  shut  out  more  than  the  old 
building  would  shut  out;  because,  of  course,  the  new  building  is 
only  responsible  for  the  additional  area  of  sky  which  it  shuts  out 
beyond  what  was  shut  out  by  the  old  building."  And  in  the 
same  case,  the  learned  Vice-chancellor  made  the  following  valua- 
ble observations  in  respect  to  the  mode  of  estimating  the  sky  area 
in  such  cases:  "In  an  ordinary  window,  that  is,  a  window  wliich 
is  in  a  vertical  frame,  and  which  itself,  of  course,  stands  verti- 
cally, the  quantity  of  area  of  sky,  supposing  there  be  no  impedi- 
ment at  all,  is  measured,  of  course,  by  180  degrees  horizontally, 
and  ninety  degrees  vertically,  because  behind  the  zenith  it  can 
derive  no  light.  If  it  were  a  horizontal  skylight,  a  skylight  per- 
fectly level  with  the  horizon,  it  would  derive  light,  that  is,  light 
mitrlit  come  to  it,  from  the  whole  vertical  area  of  ninety  degrees 
on  one  side,  and  ninety  degrees  on  the  other,  making  180  degrees. 
If  it  is  neither  vertical  nor  horizontal,  it  will  derive  light  from  an 
area  to  be*  measured  vertically  having  regard  to  the  number  of 
degrees  that  the  slope  of  the  building  is  from  the  perpendicular, 
because  you  must  add  that  slope  from  the  perijendieular"  {Shone 
V.  The  City  of  London  Real  Property  Company,  [Limited],  May 
8,  1866,  not  reported  except  in  Latham's  Law  of  Wvidow  Lights, 
228,  229).  These  observations  of  the  learned  Vice-chancellor  are 
important,  and  lay  down  rules  which  are  very  necessary  to  be 
understood,  and  could  only  have  been  settled  by  calculation,  study 
and  care.  If  a  jury  be  summoned  to  decide  the  question,  it  has 
been  said  that  they  ought  to  judge  rather  from  their  own  ocular 
observation  than  from  the  testimony  of  any  witnesses,  however 
respectable,  of  the  degree  of  diminution  which  the  plaintift''s 
ancient  lights  have  undergone  ( Vide  Bach  v.  Stacey,  2  Car.  c& 
Payne's  P.,  4:(j(j).  But  if  the  premises  no  longer  exist  in  the 
former  state,  the  view  of  a  jury  would  be  of  no  service.  Said 
Wood,  V.  C,  in  a  case  before  referred  to  :  "  The  benefit  of  a  view, 


568  -C-'^"^  0^  irrwow  lights. 

which  was  also  pressed  upon  me,  I  think  is  a  good  deal  exagge- 
rated. If  the  jury  could  have  had  an  opportunity  of  viewing  the 
premises  as  they  existed  a  year  ago,  and  could  be  taken  to  view 
them  as  they  exist  now,  the  view  miglit  be  very  serviceable.  But 
as  it  is,  I  confess  I  think  that  by  the  view  the  jury  is  exceedingly 
likely  to  be  prejudiced ;  for  where  a  jury  view  premises  as  they 
are,  without  the  slightest  knowledge  of  what  they  were  before, 
they  may  be  influenced  by  the  remark  that  was  pressed  upon  me, 
but  %vliat  I  think  is  of  no  vahie  whatever,  namely,  why  tiiere  are 
plenty  of  people  in  London  who  have  not  so  much  light  as  you 
have  "  {Dent  v.  The  Auction  Mart  Comjyany,  35  Zmo  J.  R.^  N. 
S.,  Cli.  566 ;  S.  C,  L.  i?.,  2  Eq.,  254).  And  it  would  seem  from 
the  remarks  of  Lord  Westbury,  in  a  case  before  referred  to,  that 
it  would  be  improper  for  the  judge  before  whom  the  case  was 
tried,  to  make  a  personal  inspection  of  the  premises.  He  should 
decide  the  case  according  to  the  evidence  produced  in  court,  and 
then  if  error  is  conmiitted,  the  party  may  have  his  redress  by 
appeal  {Yide  Jackson  v.  The  Duke  of  Newcastle,  33  Law  J.  i?,, 
N.  8.,  Ch.  701). 

As  a  question  (A  practice^  it  may  be  observed  that  the  Supreme 
Court  of  the  State  of  Illinois  has  held,  that  in  an  action  for  obstrnct- 
ino-  air  and  liirht  to  the  windows  of  a  house,  the  declaration  need 
not  prescribe  for  ancient  lights,  but  that  the  common-law  pre- 
scription for  use  and  enjo3nnent  for  a  time  whereof  the  memory 
of  man  runneth  not  to  the  contrary,  may  be  shown  in  evidence 
{Gerher  v.  Gmhel,  16  III.  B.,  217).  This  may  not  only  indicate 
the  doctrine  of  the  court  upon  the  question  of  practice,  but  also 
upon  the  general  subject  of  the  right  to  window  lights  as  well. 
And  here  the  discussi'^ni  of  the  whole  subject  is  closed. 


ALPHABETICAL    INDEX. 


A. 

A.BANDONMENT,  paob. 

right  to  window  lights  lost  by,  when 556-558 

ABATEMENT, 

of  overhanging  branches  and  the  like 326 

fences  in  highway 390-39-1 

ACCRETION, 

Vide  Alluvion. 
ACQUIESCENCE, 

evidence  of  true  boundary  of  land,  when 336,  337 

ACTION, 

when  lies  for  neglect  respecting  fences.  ..34a,  345,  358-3GU,  365-370,  373 

pulling  down  party  wall 355,  356 

drip  of  eaves 358 

grubbing  up  trees,  etc 358 

removing  line  fence 368 

obstructing  window  lights 553-554,  560,  561 

ACTS  OF  OWNERSHIP, 
Vide  Ownership. 

ADJOINING  LAND, 

no  obligation  to  fence  against  cattle  on,  when 341,  343 

property  in  fruit,  etc.,  falling  on 330,  381,  334 

ADJOINING  OWNERS, 

boundaries  of  land  of,  how  settled 345,  347-353,  356-367,  373 

must  maintain  partition  fences,  when 361-365,  435,  436,  433 

Vide  Fences. 
ADMISSIONS, 

Vide  Evidence. 

ADVERSE  POSSESSION, 

concludes  parties  respecting  boundary  of  land,  when 335 

AGREEMENT, 

to  settle  boundary  of  land  by  parol,  when  valid 354-256,  337 

may  be  given  in  evidence  in  boundary  cases,  when,  390-393,  314,  334,  335 

in  respect  to  boundary  land,  when  void 338 

to  maintain  fences,  must  be  in  writing,  when 344,  345 

presumed  in  respect  to  fences,  when 346,  348 

not  implied  in  respect  to  fences  when 350 

72 


570  ALPHABETICAL  INDEX. 

AGREEMENT— Continued.  pake. 

right  to  window  lights  acquired  by,  when 525-527,  532,  535,  541 

551,  563,  564 

by,  how  created 526,  527,  539 

express,  when ....   525-527,  539 

implied,  when 527-531 

not  implied,  when 544,  548 

AIR, 

importance  of  the  right  to 515,  516 

nature  of  the  right  to 515,  516 

right  to,  an  easement 516 

right  to,  different  from  right  to  light 520 

in  city  and  country  the  same 520 

Vide  Window  Lights. 

ALABAMA, 

boundary  of  the  State  of 281 

statutes  in  respect  to  fences  in 492-495 

what  are  lawful  fences  in 492,  498 

damages  by  trespassing  animals  in,  recoverable  when 493-495 

dangerous  things  in  fences,  prohibited  when 493 

when  and  how  partition  fences  to  be  maintained  in 493,  494 

property  in  partition  fences  in  493 

liability  of  railroad  companies  in 495 

ALLUVION, 

what  is 81-84,    87 

title  to 81,  86,  169,  170 

belongs  to  the  State,  when 81,     86 

individuals  when 81,  84,  86-88,  169,  170 

when  formed  by  artificial  means,  rules  in  respect  to 85,    86 

Mr.  Livingston's  views  in  respect  to , 87,     88 

how  formed  by  natural  causes 88,     89 

how  divided  between  the  different  proprietors 90,     91 

AMBIGUITY, 

in  grants  of  land,  how  explained 284,  285 

Vide  Construction. 

ANCIENT  DOCUMENTS, 

when  evidence  in  boundary  cases 309,  310 

ANCIENT  LIGHT, 

right  to,  how  acquired 522-525,  542 

acquired  by  prescription,  when 521-525 

express  agreement,  when 525-527,  539 

implied  agreement,  when 527-531 

the  American  doctrine  in  respect  to 532-551 

cannot  be  legally  obstructed,  when 532,  534,  539 

what  regarded  as  such 532 

right  to,  how  lost 557,  558 

remedy  for  obstruction  of. 564 

Vide  Window  Lights. 


ALPHABETICAL  INDEX.  571 

ANCIENT  SURVEY,  page 

-\vlien  evidence  ia  boundary  cases 313,  315 

APPURTENANCES, 

•what  passes  as  such  in  grants  of  land  170,  171,  173-176 

ARKANSAS, 

statutes  respecting  fences  in 503 

AVENUE, 

boundary  of  lands  on,  rules  in  respect  to 176,  183 

Vide  Highways,  Streets. 

AVULSION, 

what  is  and  rules  in  respect  to 94 

AWARD, 

not  competent  evidence  in  boundary  cases,  when 308,  309 

B. 

BAILEE, 

may  sue  for  injury  from  defective  fences,  when 359,  364 

BALKS, 

what  are,  and  presumptions  in  respect  to 116 

BANK, 

meaning  of  in  respect  to  a  river  or  stream  of  water 94 

BEACH, 

meaning  of 217 

BOUGHS, 

Vide  Trees. 

BOUNDARY, 

defined 27 

of  land,  how  known >  27,     28 

by  what  to  be  settled 28 

construction  of  language  of 28,  29,  118-133 

on  sea-shore 31-33,     40 

navigable  rivers 40-46,  48,  146-148,  169,  184,  224 

unnavigable  rivers,  49-63,  77, 105,  106,  125-127,  144-148,  153 
154,  169,  177,  185,  197,  198,  217,  218 

lakes 64-70,  161,  162 

ponds 70-73,  161,  162,  221 

in  respect  to  islands •  •  73-80 

alluvion  or  accretion 81-91 

reliction 91-94 

sea-walls  and  the  like 95-103 

roads  and  streets..  103-111,  113,  125-127,  134,  136,  149-ir,3 
154-163,  169,  170,  176,  178-186,  191,  192,  195-197,  210,  234 

private  ways 112-114 

waste  lands  adjoining  roads 114-116 

party  walls 117,  118,  140 


572  ALPHABETICAL  INDEX, 

BOUNDARY— Continued.  pagb. 

construction  of  particular  grants,  in  respect  to 133-224 

of  lands  on  ridge  of  hills 151,  184 

harbors 157,  158 

how  construed  in  respect  to  reservation  in  grants 158 

is  the  outer  edge  of  the  object  designated,  when 167 

extends  to  center  of  highway,  when 180,  195,  197,  206,  213,  215 

of  land  with  varied  descriptions 192-194,  204,  207,  208,  210,  211 

214-216 

description  of,  in  two  writings,  how  construed 199 

grants  from  the  State,  how  construed. ...  20O 
how  construed  when  buildiugs  are  the  objects  used. . .  205,  206,  208,  211 

212,  214,  215 

practical  location  of 206 

in  respect  to  fiats,  how  construed 225-232 

of  States,  counties  and  the  like 223-244 

when  disputed  between  individuals,  how  settled  .  •  244-252,  254-269,  272 

towns,  how  settled 246,  252,  253 

when  deemed  to  be  lost 249,  250 

confusion  of,  what  is 269-277 

practice  in  equity  to  settle 277-281 

evidence  in  cases  of 281-317 

in  respect  to  hedges,  trees  and  the  like 318-328 

a  parish 328-332 

estoppels  in  respect  to 333 

BOUNDARY  TREES, 

property  in 318-328 

BOUNDARY  WALL, 

property  in 323 

BRANCHES  OF  TREES, 

overhanging  boundary  line,  property  in 325,  326 

highway,  may  be  lopped,  when 326 

BUSH  OR  SHRUB, 

Vide  Trees,  Tenant. 


c. 

CALIFORNIA, 

statutes  respecting  fences  in ? 482-486 

what  are  lawful  fences  in 482-484 

owners  liable  for  trespassing  animals  in,  when 482,  484,  485 

partition  fences  in,  how  maintained 484 

value  of,  when  collectible 484 

penalty  for  injury  to  fences  in 485 

unfenced  fields  in,  not  protected  by  law 485 

sheep  free  commoners  in 485 

liability  of  railway  companies  in 485,  486 


ALPHABETICAL  INDEX.  573 

PATT  PAGE. 

low  answered  in  deed 29,  119,  176.  187,  188,  201,  203,  214,  216 

controls  course  and  distance,  when 132,  201 

one  must  give  way  to  others,  when -'-*' 

'"'"''''b'^'undaryof  landon 133-135,  194.  221 

defined 

CASE, 

lies  for  encroachments  upon  navigable  waters,  when JO,     Ji 

CA-TTLE, 

no  obligation  to  fence  against  by  the  common  law d-ti,  ^^-^ 

owner  liable  for  trespass  of,  when 342,  345,  359,  360,  368 

damages  by,  through  defective  fences,  when  recoverable. . .  359,  360,  366 

may  be  distrained,  when 

Vide  New  York,  Maine,  etc. 

CIVIL  LAW, 

lule  of,  in  respect  to  reliction *''"'     ^"^ 

property  in  trees 319,  328 

CLOSE,  2^^ 

defined  

COMMISSION, 

when  granted  to  settle  boundaries 245,  247-252,  256-267,  272 

distinguish  copyhold  from  leasehold  lands 261-263 

267 

cases  in  which  the  remedy  by,  is  denied 265,  266,  269-272,  274-277 

CONTUSION  OF  BOUNDARIES, 

what  constitutes "' 

remedies  in  cases  of 245,  247-252,  256-267,  273 

rules  in  respect  to -^"-^  -"*' 

CONNECTICUT,  Ao-Aon 

statutes  respecting  fences  in 4^0-437 

fences  must  be  maintained  in,  when 425,  428,  437 

what  are  lawful  fences  in ^■^'^ 

partition  fences  in,  how  to  be  maintained 425,  426,  433 

where  to  be  located 426 

what  are  regarded  such 426,  427 

expense  of,  when  recoverable 427,  432,  433 

how  divided  between  adjoining  owners,  427,  431,  433 

sufficiency  of,  how  determined 427,  428 

making  of,  how  enforced 428-432,  435 

fence-viewers  in,  and  sufficiency  of  their  proceedings 429,  430-432 

435,  436 

inclosures  in,  not  to  be  thrown  open,  when 432,  433 

damage  by  cattle  in,  when  recoverable 433,  437 

rules  respecting  unruly  cattle  in 433,  434 

common  fields  in  434,  43j 


574  ALPBABETICAL  INDEX. 

CONNECTICUT— Continued.  pige. 

penalty  for  throwing  down  fences  in 435 

rules  respecting  railway  fences  in 436 

fencing  homestead  in 436 

cattle  may  be  impounded  in,  when 437 

CONSTRUCTION, 

of  land  grants,  rules  in  respect  to 28,  29,  118-133,  190 

parol  evidence  to  aid  in 71,  121,  122,  164,  165,  203,  204,  284 

of  grants  of  land  on  rivers •  •  •  ''^9.  125 

roads  and  streets 103-111,  125,  134 

privato  ways 112-114 

party  walls 117,  118 

general  rules  in  respect  to 118-133,  190,  200-202,  205,  222,  224 

282,  283 

intent  of  parties  to  control  in 120,  121 

so  made  that  whole  instrument  is  operative 123 

paper  must  speak  for  itself. 120,  124,  127,  129 

of  grant  from  the  State,  same  as  from  individuals 133 

rules  of,  applied  to  particular  grants 133-224 

change  of  words  in  giving,  when  proper 159 

of  grants  when  quantity  is  specified 162-164,  194,  195,  209 

particular  words  in  grants 185,  186,  201 

rules  in  respect  to  aids  in  giving 284,  285 

CONVEYANCE, 

of  land,  how  construed 28,     29 

Vide  Construction. 
COSTS, 

in  boundary  cases,  rules  in  respect  to 280,  281 

COUNTIES, 

rules  in  respect  to  boundaries  of 233 

courts  will  take  judicial  notice  of,  when 234-236 

COURSE  AND  DISTANCE, 

must  yield  to  monuments,  when. . .  30,  140,  156,  157,  167,  177,  178,  187 

188,  221,  222,  232,  282 

when  land  may  be  located  by 202 

controlled  by  other  objects  in  deed,  when 208 

COVE, 

boundary  of  land  on 1*1 

COVENANT, 

to  repair  sea-wall  runs  with  land 102 

fences,  runs  with  land,  when 344 

in  leases,  when  runs  with  land 511)  512 

for  right  to  window  lights,  runs  with  land,  when 527 

when  special 559,  560 

CREEKS, 

boundary  of  land  on,  when  an  arm  of  a  lake. .  65,  67,  148,  220,  223,  226 
how  construed 153,  154,  159,  161,  162,  183 


ALPHABETICAL  INDEX.  575 

CUSTOM,  r^e*- 

liability  to  repair  sea-wall  by ^^2 

aid  for  construing  grant,  when 198 

when  binding  in  respect  to  fences 345,  346 

D. 

D.UIAGE-FEASANT, 

cattle  may  be  distrained  doing,  when 396 

DAMAGES, 

may  be  recovered  for  non-repair  of  fences  when 342,  345,  358-360 

365-370,  373 
DECLARATION, 

of  parties,  when  admissible  in  boundary  cases 300-305 

DEDICATION, 

of  road,  effect  of 111>  l^^,  315 

DEED, 

how  effected  by  reference  to,  in  second  grant 158 

when  two  or  more  are  to  be  construed  together 166 

certain  words  in,  how  construed •. 1"^ 

ambiguity  in,  how  explained 284,  28a 

to  third  person,  when  evidence  in  boundary  case 287 

contracts  may  not  be  proved  by  parol,  when 287 

Vide  Construction. 

DEFENSE, 

when  allowed  to  be  erected  against  encroachments  by  the  sea 97,     98 

rivers 97»     ^^ 

DEFINITIONS, 

27 
of  boundary 

shore 33,34,  94 

alluvion Sl»  ^^'  ^* 

reliction 

bank  of  a  river  or  other  stream ^^ 

94 
avulsion  

purpresture ^^'     ^^ 

balks ^^^ 

beach   ^^l 

bounds  11^ 

bed  of  river ^^^ 

fences  

inclosure 

"cattle" fl 

,.        ..  470 

discretion 

516,  526 

easement ' 

DELAWARE,  ^^^    ^,, 

•       /•            •  444    445 

statutes  respecting  fences  m ' 

owners  liable  for  trespassing  cattle  in,  when •  •  •  ■  444,  44.) 

partition  fences  in,  rules  in  respect  to •  •  •     ' '' 


576  ALPHABETICAL  INDEX. 

DERELICT, 

Vide  Allution. 

DESCRIPTION,  PAsi. 

of  boundary  in  grants,  bow  construed 28,  29,  118-133 

parts  of,  may  be  rejected  wben 121,  123,  124,  129,  130 

aid  for  interpreting  language  of 124,  284,  285 

want  of,  invalidates  deed,  wbeu 130,  137,  302 

contained  in  one  deed  to  be  tbat  of  another,  when 131 

in  deeds  from  State,  how  construed 133 

particular  grants,  how  construed 133-224 

map  taken  as  part  of,  when 138,  139,  141 

what  is  sufficient  in  a  grant 159 

when  parol  evidence  to  explain  admissible 285 

DISCOVERY, 

when  equity  grants  in  boundary  cases 267,  268 

DITCH, 

boundary'  of  lands  on 161,  187 

when  action  accrues  for  obstructing 333 

on  boundary,  where  to  be  located 351 

rules  in  respect  to 351-353 

DIVISION  FENCES, 

obligation  to  maintain,  when 342,  343 

how  regulated 343,  345 

legislature  has  power  to  regulate 343 

agreements  to  maintain,  when  valid 344,  345 

covenant  to  maintain  runs  with  the  land,  when 344 

obligation  to  maintain  by  prescription 344-347 

how  destroyed 348-350 

where  to  be  located 351 

Vide  Fences. 

DOCUMENT, 

Vide  Evidence. 

DOMINANT  TENEMENT, 

owner  of,  what  light  entitled  to 541,  552,  553-556 

has  right  to  window  lights,  when 556-559 

remedy  for  obstruction  of  window  lights 535,  552,  554,  559-566 

E. 

EASEMENT, 

nature  of  the  right  in  the  public  highway Ill,  112 

what  passes  by  a  grant  of. 173,  174 

to  have  fences  repaired 343 

when  grant  of  is  presumed 345,  353,  354 

when  held  to  be  extinguished 349,  547,  556-559 

right  to  light  and  air 516,  526,  532 

defined 516,  526 


ALPHABETICAL  INDEX.  577 

EASEMENT— Continued.  ^^^^ 

bow  created 50(5^  535^  543. 

what  is  evidence  of 526 

of  light  cannot  be  acquired  by  prescription,  when 540 

EAVES, 

right  to  drip  of,  how  acquired 355^  357 

EJECTMENT, 

remedy  by  iu  case  of  disputed  boundaries 257;,  275-277 

party  wall,  when 357 

EMBANKMENT, 

on  the  sea  for  protection,  rules  in  respect  to 95-102 

"when  allowed  on  unnavigable  streams 98-100 

ENCROACHMENT, 

on  highways  by  fences,  remedy  for 390-394i 

EQUITY, 

court  of,  will  grant  relief  in  case  of  disputed  boundaries,  when 245' 

247-252,  256-267,  272 

rules  of,  respecting  disputed  boundaries 269-277 

will  enforce  covenants  respecting  window  lights,  when 559,  560 

grant  relief  in  cases  of  obstructing  window  lights,  when 561-566 

ESTOPPEL, 

"when  can  be  set  up  in  boundary  cases 333-335 

ESTOVERS, 

tentants  right  to,  rules  in  respect  to 507-509 

EVIDENCE, 

in  respect  to  navigability  of  rivers 54    55 

"When  parol  admissible  to  explain  grant  of  land 71,  125,  212,  284-288 

effect  of  acts  of  ownership  resi>ecting  waste  lands. 114,  115 

to  aid  in  construing  grants  of  land 121^-123,  128,  207,  284 

of  locating  monuments  on  land 125,  203 

hearsay  in  respect  to  boundaries,  when  admissible 207,.  296-306 

generally  in  boundary  cases 281-317,.  333-388; 

of  usage,  when  proper 294-296> 

declarations  of  parlies  respecting  boundaries,  when  admiissible. .  300,  335- 

documentary  in  boundary  cases 307-317.' 

in  respect  to  ditches 35^, 

sufficiency  of  fences 369,  375i 

window  lights 558,  554,  566-568- 

EXTENT, 

of  the  right  to  window  lights 552-556: 

E  >LTINGUISnMENT, 

of  easements,  how  effected 349,  547,  556-559» 

the  right  to  window  lights,  how  effected 547,  556-559- 


578  ALPHABETICAL  INDEX. 

F. 

'FEJsCES,  PAGB. 

how  the  word  is  applicable  to  lands 28 

indicate  the  extent  of  highway,  when Ill 

passengers  on  highway  may  make  gap  in,  when 116 

defined 341 

not  required  by  the  common  law 341,  342,  346.  347,  348 

action  for  neglect  to  build  or  repair 342,  345 

subject. of,  how  regulated 343 

right  in, respect  to  an  easement  843 

legislature  may  regulate. 343,  372-380,  496 

statutes  in  respect  to,  how  construed 343,  344 

obi  igation  to  maintain  by  agreement 344 

covenant  to  maintain  runs  with  the  land,  when 344 

obligation  to  maintain  bj'  prescription 345-347 

how  destroyed 318,  350 

where  to  be  located 351-353,  358,  362,  363 

property  in. 352-354 

when. may  be  removed  by  one  party 353-357 

liability  for  repair  of 356,  358,  360 

consequence  of  the  neglect  to  repair 358-360,  365-370,  372 

statutes  of  the  several  States  in  respect  to 361-504 

New  York  respecting 361-398 

materials  for,  deemed  fixtures,  when 397,  463,  471,  472 

statutes  of  Maine,  respecting 399-405 

New  Hampshire,  respecting 405-410 

Vermont,  respecting 410-415 

Massachusetts,  respecting 415-422 

Rhode  Island,  respecting 422-425 

Connecticut,  respecting 425-437 

New  Jersey,  respecting 438-440 

Pennsyh'ania,  respecting 440-444 

Delaware,  respecting 444,445 

Maryland,  respecting 445,446 

Virginia,  respecting 446 ,  447 

West  Virginia,  respecting 447,448 

Ohio,  respecting 448,449 

Michigan,  respecting 449 ,  451 

Indiana,  respecting 451-454 

Illinois,  respecting 454-458 

Wisconsin,  respecting 459-465 

Minnesota,  respecting 465 ,  466 

Iowa,  respecting 466-472 

Missouri,  respecting 472-475 

Kansas,  respecting 475-479 

Nebraska,  respecting 479-481 

Nevada,  respecting 481 ,  483 

Oregon,  respecting 482 

California,  respecting .    ,  482-486 


ALrUABETICAL  INDEX,  570 

FENCES— Continued.  -pKat:. 

statutes  of  North  Carolina,  respecting 4SG-489 

South  Carolina,  respecting 489,  400 

Georgia,  respecting 490-492 

Florida,  respecting 493 

Alabama,  respecting 492-495 

Kentucky,  respecting 496-408 

Tennessee,  respecting 408-500 

Mississippi,  respecting 500-502 

Louisiana,  respecting 502,  503 

Arkansas,  respecting 503 

Texas,  respecting 503,  504 

summarj'-  of  the  Statutes  respecting 504 

rights  and  liabilities  of  landlords  and  tenants  in  respect  to .. .  504-513 

FENCE-VIEWERS, 

duties  and  powers  of,  in  New  York 361,  365,  394-397 

Vide  Maine,  etc. 

FISHERY, 

right  to,  how  acquired 38 

when  enjoyed 219 

FIXTURES, 

when  fencing  materials  are  held  to  be 397,  463,  471,  472 

FLATS, 

what  passes  by  grant  of 175, 197,  225-232 

how  divided  between  adjoining  proprietors 226-230 

disseisin  of,  how  proved 280,  231 

what  language  will  pass  title  to •  •  231,  232 

FLORIDA, 

statutes  respecting  fences  in 493 

FRUIT, 

falling  on  neighboring  land,  property  in ......... 325,  326 

on  overhanging  branches,  property  in 325,  326 

FRONTAGERS, 

to  repair  sea-walls,  when 102 


G. 

GEORGIA, 

boundary  of 239 

statutes  respecting  fences  in 490-492 

what  are  legal  fences  in 490,  491 

animals  trespassing  on  unfenced  land  in 490,  491 

maybe  impounded,  when..  491 

pulling  down  fences  in,  an  indictable  offense 491 

liability  of  railway  companies  in 401,  492 


580  alp:b:abetical  index. 

GRANT,  PAGE. 

of  land,  how  construed 28-30,  86,  118-133,  190 

what  may  be  rejected  in 30,  162,  164,  165,  204,  210,  231 

of  land,  taken  most  strongly  against  grantor,  when 30,  120 

sea-shore,  evidence  of 36 

whatpassesby 37-39,43,79,     86 

extends  to  center  of  river,  when 43,  49-63 ;  65,  106 

of  rivers,  what  passes  by 79 

lands  on  roads  and  streets,  what  passes  by 103-111, 125,  126,  133-136 

149-151 

extends  to  center  of  roads  and  streets,  when 103-111 

private  way,  when 112-114 

party  wall,  when 117,  118 

general  rules  of  construction  of 118-133,  201,  203 

aids  in  the  construction  of. 124, 128,  184, 198,  208,  284,  285 

void  for  want  of  proper  description,  when 130, 137,  202 

effect  of  mistakes  in 189,  190, 199,  200,  337,  338 

rules  of  evidence  in  locating 281,  282 

of  land  by  quantity,  how  construed 337,  338 

in  respect  to  window  lights,  rules  in  respect  to 528,  529 

GRANTEE, 

Tide  Grantor. 

GRANTOR, 

languaee  of  grants,  how  construed  in  respect  to,  30, 120,  123,  130-132,  139 

202,  225,  281 

when  rule  as  to  strong  construction  against,  not  applied 131 

may  not  derogate  from  grant  respecting  window  lights,  when. . .  528,  529 
stop  the  light  of  his  grantee,  when,  528-531,  534,  535,  539,  540 

543,  544,  547,  548,  550 
may  obstruct  the  light  of  his  grantee,  when 536-538,  545,  548 

H. 

HARBOR, 

boundary  of  land  on 157,  158 

HEARSAY, 

when  admissible  in  respect  to  boundary 207,  296-306 

HEDGE, 

passengers  on  highway  may  break  through,  when 116 

on  division  line,  property  in 318-320 

HEIR, 

bound  by  ancestor's  covenant,  when 344 

HIGH- WATER  MARK, 

Tide  Lakes,  Rivers,  Sea-shore,  Boundary. 

HIGHWAY. 

boundary  of  land  on,  103-111,  113,  125-127,  134,  136,  149-153,  154-163 
169,  170,  176,  178-186,  191,  192,  195,  195,  210,  224 


ALPHABETICAL  INDEX.  581 

HIGHWAY— Continued.  p^o^- 

presumption  as  to  property  in  soil  in 103-111,  113 

grant  extends  to  center  of,  when,  104-111, 113,  125-127,  134,  136,  142,  144 

145,  149-152,  154-1G3,  1G5-1G7,  179 

extends  from  fence  to  fence,  when HI 

statute  controls  extent  of,  when HI 

right  of  the  public  in 111,112,150,372,373 

travelers  may  turn  out  of,  when 116,  117 

branches  of  trees  hanging  over,  may  be  lopped,  when 326 

abatement  of  obstructions  and  encroachments  to 390-394 

HILLS, 

boundary  of  lands  on 151,102,181-183 

HISTORY, 

Vide  Evidence. 

I. 

ILLINOIS, 

statutes  respecting  fences  in 454-458 

fenciug,  "common  fields,"  in ^^^ 

maintenance  of  partition  fences  in 454,  455,  457 

disputes  respecting  fences  in,  how  settled 454 

lands  in,  may  remain  unfeuced,  when 455 

what  is  a  lawful  fence  ill 45o 

actions  for  tre8i)assing  animals  in 455-457 

stock,  to  be  secured  by  fence,  in,  when 456 

may  run  at  large,  in,  when 456,  4o7 

rules  respecting  railway  fences  in 458 

INDIANA, 

statutes  respecting  fences  in 451-4o4 

what  is  a  lawful  fence  in 451,  457,  note 

action  for  trespassing  animals  in 451-453 

rules  respectmg  partition  fences  in 451,  452 

outside  fences  only  required  in,  when 452 

rules  respecting  railway  fences  in 452-454 

INDICTMENT, 

when  lies  for  encroachment  upon  navigable  waters 96,  97 

Vide  Fences. 

INJUNCTION, 

not  allowed  in  cases  respecting  light  and  air,  when 545,  561 

allowed  in  cases  of  obstruction  to  window  lights,  when 554,  561-564 

to  restrain  nuisance,  when "^"1'  "^""^ 

different  kinds  of,  in  cases  of  obstruction  to  window  lights 561 

INTENT  OF  PARTIES, 

ahvavs  go verus  in  construction  of  grants. . .  120,  121,  125,  128,  132,  144 

147,  174,  208 

how  ascertained  in  respect  to  grants  of  land,  120,  124,  125,  128,  131,  174 

166,  233 


582  ALPHABETICAL  INDEX. 

INUNDATION,  page. 

law  of  alluvion  applies  in  case  of,  wlien 68,  09,  84,    91 

boundaries  not  altered  thereby,  when 69,  75,    91 

[OWA, 

boundary  of 239-241 

statutes  respecting  fences  in 466-472 

partition  fences  in,  how  maintained 466-468,  470 

value  of,  may  be  recovered,  when 467,  470 

disputes  respecting,  how  settled 467 

dispensed  with,  when 467,  468 

how  divided  between  proprietors 467,  468 

mistakes  in  locating,  how  corrected 468 

what  is  a  lawful  fence  in 468,  470 

animals  free  commoners  in,  when 468,  469 

rules  respecting  fencing  railroads  in 469,  471 

proceedings  of  fence-viewers  in 469 

actions  for  trespasses  of  animals  in,  when 469,  470 

fences  in,  held  to  be  fixtures  when 471,  473 

ISLAND, 

property  in 49,  50,  73-80 

ISSUE, 

Vide  Equity. 

J. 

JUDICIAL  NOTICE, 

will  be  taken  of  location  of  States,  counties  and  the  like 234-236 

JURISDICTION, 

may  be  exercised  by  New  York  and  New  Jersey,  when 241,  243 

U.  S.  courts  in  respect  to  boundary,  when. .  243,  244 
courts  respecting  boundary,    when,    245,    247-253 

254-269,  273 

equitable,  rules  respecting,  in  boundary  cases 269-277 

when  denied  in  boundary  cases  ...  265,  266,  269-273,  274-277 

JURY, 

how  opinion  of,  to  be  formed  in  cases  of  window  lights 567,  568 

K. 

KANSAS, 

statutes  respecting  fences  in 475-479 

rules  respecting  fencing  fields  in 475-478 

what  are  legal  fences  in 475,  476,  478 

powers  and  duties  of  fence-viewers  in 476 

partition  fences  in,  maintenance  of 476,  477 

value  of,  recoverable,  when 476,  477 

how  divided  between  proprietors 476,  477 

may  be  dispensed  with,  when 477 

damages  for  want  of 477-479 

mistakes  in  locating,  effect  of 478 


ALPHABETICAL   INDEX.  583 

KENTUCKY,  p^*"'- 

boundary  of 233,239.242,243 

statutes  respecting  fences  in 496,  497 

what  are  lawful  fences  in ^^^ 

legislature  may  regulate  fences  in 490 

conveyance  of  defective  fences  in 496,  497 

partition  fences  in,  may  be  removed,  when 497,  498 

rules  respecting  fencing  railways  in 498 

L. 

LAKE, 

boundary  of  land  of G4-T0,  109,  170,  197 

soil  under,  property  in 08-<0 

boundary  of  States  on 234,  230,  237 

LAND, 

description  of,  in  grants,  how  construed 28,  29,  118-133,  190 

rules  for  lociiting  grant  of -'^ 

title  to,  under  navigable  waters 31-33,  39,  40,  44-40,  48,    49 

unnavigable  waters 45,  49-03 

boundary  of,  on  luivigable  waters 45,  48,    49 

unnavigable  waters    49-63 

lakes  and  ponds 64^73 

formed  by  alluvion,  property  in 81-91 

relicta,  property  in 91-94 

LANDLORD, 

obligations  of,  respecting  fences 504-512 

remedies  of,  respecting  waste 500-508 

covenants  of,  to  renew  lease,  rules  respecting 512 

LANDLORD  AND  TENANT, 

rights  and  liabilities  of,  respecting  fences 504-513 

lease  between,  how  construed 504,  505 

which  bound  to  maintain  fences  on  demised  land 505 

LE  \.SE 

how  construed 504-500,  510,  511 

covenants  in,  run  with  land,  when 511,  51^ 

LETTERS  PATENT, 

how  may  be  avoided -^^ 

LIGHT, 

importance  of  the  right  to 515,  516 

nature  of  the  right  to 516 

right  to,  is  an  easement 516 

not  to  be  interfered  with,  when 519,  o20 

how  differs  from  air 5V.0 

right  to,  in  city  and  country  alike 520 

how  acquired  5~l-o31 

LINES, 

of  land,  how  to  be  run "^ 


584  ALPHABETICAL  INDEX. 

LORD,  PAOB. 

rights  of,  in  respect  to  waste  lands ,  114,  115 

LOUISIANA, 

statutes  respecting  fences  in 503,  503 

provisions  respecting  boundary  lines  in 502 

railroads  in 502,  503 

the  easement  of  light  and  air  in 546,  547 

M. 

MAINE, 

statutes  respecting  fences  in 399-405 

fence-viewers  and  their  duties  in 399,  400,  402 

what  are  legal  fences  in 399 

partition  fences  in,  maintenance  of 399-401 

how  divided  between  proprietors 400,  404 

value  of,  may  be  collected,  when 400^03 

when  to  be  kept  up 401 

where  to  be  located 401,  402 

may  be  dispensed  wilh,  when 402,  403 

want  of,  conveyances  of 404 

fences  in,  deemed  boundary  line,  when 404,  405 

required  by  prescription,  when 405 

obligation  of  railroad  companies  ia  respect  to  fences  in 405 

rules  respecting  fencing  of  common  lands  in 405 

impounding  animals  in 405 

light  and  air  in 543 

MANDATORY  INJUNCTION, 

when  granted  in  cases  of  obstructing  window  lights 565,  566 

MAP, 

when  deemed  part  of  grant  of  land , 188,    139,  312 

referred  to  in  grant,  etTect  of 141-144,  153,  169,  196 

when  evidence  in  boundary  cases 286,  310-312,  314 

MARYLAND, 

statutes  respecting  fences  in 445,  446 

common  law  respecting  fences  recognized  in 446 

MASSACHUSETTS, 

statutes  respecting  fences  in 415-422 

what  are  lawful  fences  in 415,  420 

partition  fences  in,  when  to  be  maintained 415 

where  to  be  located 415,  419-421 

occupants  of  land  to  build  fences  in,  when 415,  416 

how  far  the  common  law  respecting  fences  is  in  force  in 415 

making  of  partition  fences  in,  how  enforced 416-421 

powers  and  proceedings  of  fence-viewers  in 417-419,  421 

controversies  concerning  fences  in,  how  settled 417,  418 

partition  fences  in,  how  long  to  be  kept  up 419 

when  not  required 420,  421 


ALPHABETICAL   INDEX.  585 

MASSACHUSETTS— Continued.  p^ge. 

actions  may  be  brought  for  neglect  to  fence  in,  when 423 

rules  in  respect  to  fences  along  highways 4'>2 

towns  in,  when  required  to  build  fences 423 

MICHIGAN, 

statutes  respecting  fences  in 449^51 

what  deemed  lawful  fences  in 449 

partition  fences  in,  maintenance  of 449-451 

rules  respecting  fencing  railroads  in 450,  451 

consequences  of  neglect  to  fence  lands  in 451 

MINNESOTA, 

statutes  respecting  fences  in 465,  466 

what  are  lawful  fences  in 465    466 

partition  fences  in,  maintenance  of 465 

disputes  in  respect  to,  how  settled 465 

stock  free  commoners  in,  when 466 

consequences  of  neglect  to  fence  land  in 466 

MISSISSIPPI, 

statutes  respecting  fences  in 500-502 

what  are  lawful  fences  in 500-501 

provisions  respecting  partition  fences  in 501 

railroads  in 501-502 

MISSOURI, 

boundaries  of 239-243 

statutes  respecting  fences  in 472-475 

inclosure  of  fields  in,  rules  in  respect  to 472 

damages  by  trespassing  animals  in,  when  recoverable 472-474 

trespassing  animals  in,  may  be  killed,  when 472 ,  473 

division  fences,  may  not  be  removed,  when 472,473 

value  of,  may  be  recovered,  when 473 

damages  for  neglect  of,  when  recoverable 473 

mistakes  in  locating,  effect  of 473,  474 

rules  respecting  liabilities  of  railway  companies  in 474,  475 

MISTAKE, 

in  respect  to  boundary  of  land,  effect  of 337,  388 

locating  line  fences,  effect  of 468,  474,  475,  478,  487 

MOHAWK  RIVER, 

rights  of  the  public  in 44,    47,     48 

MONUMENT, 

controls  course  and  distance,  when 30,  119,  120,  198,  232,  285 

boundary  extends  to  center  of,  when 118,  119.233 

identity  of,  in  land  grants 124.  125 

placing  of,  how  proved 125 

course  of,  presumptions  in  respect  to 133 

one  prevails  over  another,  when 132,197 

effect  of,  generally,  in  land  grants 184,  187,  191 

natural,  when  maj-  be  yielded 21S 

74 


58G  ALPHABETICAL  INDEX. 

MOORING,  PAGE, 

public  right  of,  along  navigable  rivers 44,    47,    48 

MULTIPLICITY  OF  SUITS, 

equitable  jurisdiction  to  prevent 251,  357,  264,  265,  274 

N". 

NAVIGABLE  WATERS, 

soil  under,  litle  to 31-33,  43 

what  are  deemed  such 35,  43,  44 

bouudiuy  of  lands  on 31,  34,  40-46,  48,  146-148,  169,  184,  224 

jurisdiction  in  respect  to 31-33,  43-45 

NEBRASKA, 

statutes  respecting  fences  in 479-481 

division  fences  in,  maintenance  of 479,  480 

value  of,  -when  recoverable 479 

disputes  respecting,  how  settled 479 

may  be  removed,  when 479,  480 

fence-viewers  in  and  their  powers 480 

what  are  lawful  fences  in 480 

damages  in  unfenced  fields,  when  recoverable 480 

cattle  in  need  not  be  fenced  against,  when 480,  note 

fencing  railroads  in,  rules  in  respect  to 481 

penalty  for  injuries  to  fences  in 481 

NEVADA, 

statutes  respecting  fences  in 481,  483 

action  for  trespassing  animals  in 481,  483 

NEW  HAMPSHIRE, 

statutes  respecting  fences  in 405-410 

division  fences  in,  maintenance  of 405-407,  409,  410 

legal  fences  in,  same  as  in  Maine 406 

value  of  division  fence  in,  may  be  recovered  when 406-408 

power  of  fence-viewers  in 406-408 

consequences  of  insufficient  fences  in 408-410 

agreements  respecting  line  fences  in 409 

remedies  for  throwing  down  fences  in 410 

liability  of  railway  companies  in 410 

NEW  JERSEY, 

boundary  of 241,  242 

jurisdiction  of. 241,  243 

statutes  respecting  fences  in 438-440 

what  are  lawful  fences  in 438,  439 

action  for  animals  trespassing  in 438-440 

division  fences  in,  maintenance  of 438-440 

how  divided  between  owners 439 

may  be  omitted,  when 439 

fences  along  streets  in,  where  required 439,  440 

location  of  division  fences  in 440 


ALPHABETICAL   INDEX.  587 

NEW  YORK,  PA««- 

boundary  of 2"*^'  ^^"' 

jurisdiction  of -. 2"*^'  ~"*~' 

statutes  respecting  fences  in 3GI-308 

division  fences  in,  maintenance  of 3G1-3G5 

fence-viewers  in,  their  powers  and  duties 361,  362,  365,  367,  369 

394r-397 

sufficiency  of  fences  in 363,  369,  3  <  0 

fences  in,  may  be  omitted,  when 363 

who  may  enforce  the  obligation  to  fence  in 363,  364 

railway  fences  in 364,  375,  380-389 

disputes  respecting  fences  in,  how  settled -^  •  365 

consequences  of  neglect  to  repair  fences  in 365-370,  373 

how  obligation  to  repair  fences  is  enforced 368,  369 

fences  in,  may  be  removed  when 368-3*0 

evidence  in  respect  to  sufficiency  of  fences  in 369,  370 

regulation  of  fences  in,  by  town  electors. . .   371-380 

powers  of  towns  in,  to  regulate  fences,  examined 372-880 

encroachments  upon  highways  by  fences  in 390-394 

fences  may  be  built  across  water-courses  in,  when 397 

right  of  party  to  erect  partition  fence  in 397 

rules  respecting  fences  in  New  York  city 397,  398 

NEW  YORK  CITY, 

regulations  respecting  fences  in 397,  398 

NORTH  CAROLINA, 

statutes  respecting  fences  in 486-489 

planter's  duties  in  respect  to  fences  in 486-488 

what  are  lawful  fences  in "186,  488 

partition  fences  in,  maintenance  of 486 

not  to  be  removed,  when 486-488 

mistake  in  erection  of 487 

action  for  trespasses  of  animals  in,  when  recoverable 487^89 

NUISANCE, 

power  of  State  to  suppress ■ 241 

in  case  of  overhanging  branches  of  trees 326,  338 

drip  of  eaves 356,  357 

fences  on  highway 390,  391 

fences  are  not,  when ^Oo 

remedies  in  case  of '^^'■■>  '^"'^ 


o. 

OBSTRUCTIONS, 

in  highway,  remedy  for 390-304 

to  window  lights,  what  is 541,  553,  553 

remedy  for 552,  553 

evidence  in  case  of 553,  554 


588  ALPHABETICAL  INDEX. 

OCCUPANCY,  PAGB. 

rigbt  to  winc'.ow  lights  acquired  by 521,  525 

conditions  of 523-525 

OCCUPATION, 

evidence  in  boundary  cases,  when 286,  294 

Vide  Practical  Location. 

OHIO, 

statutes  respecting  fences  in 448,  449 

when  railroads  in,  must  be  fenced 449 

animals  free  commoners  in 449 

OREGON, 

statutes  respecting  fences  in 483 

penalty  for  destroying  fences  in 482 

OWNERSHIP, 

of  lands  under  tlie  sea  and  other  navigable  waters 31-36,  50,  51,  73, 

315-317 

unnavigable  waters,  49-63,  77,  105, 106,  125-127,  144-148, 

153,  154,  169,  177,  185,  197,  198,  217,  218 

roads  and  streets,  103-111,  113,  125-127,  134,  136,  149-152, 

154-163,  169,  170,  176,  178-186,  191,  192, 195-197,  210-224 

acts  of,  when  evidence  in  boundary  cases 114,  115,  315-317 

proof  of,  in  case  of  ditches 351,  353 

P. 

PARISH, 

boundaries  of,  rules  in  respect  to 328-S32 

towns  regarded  such,  where 330 

rules  in  respect  to 330 

PAROL, 

Vide  Evidence. 

PARTIES, 

to  proceedings  to  settle  boundaries 279 

PARTITION, 

of  lands,  when  proper 271,  272,  278 

PARTY  WALL, 

presumptions  in  respect  to 117,  118 

boundary  of  land  on 117,  118,  140 

how  to  be  located,  and  property  in 352-354 

may  be  pulled  down,  when 353-357 

liability  for  repairs  of 356 

obligations  in  respect  to 356,  357 

PENNSYLVANIA, 

statutes  respecting  fences  in 440-444 

inclosures  in,  to  be  fenced,  when 44C 


ALPHABETICAL  INDEX.  589 

PENNSYLVANIA— Continued.  paob 

coDvSequences  of  want  of  fences  in 440,  442,  444 

penalty  for  throwing  down  fences  in  ...  i 440 

partition  fences  in,  maintenance  of 440-442 

disputes  in  respect  to,  how  settled 441 

powers  of  borough  in  respect  to 441 

how  to  be  located 44L 

value  of,  recoverable,  when 44L,  44o 

may  be  removed,  when 442,  443 

cattle  in  must  be  secured  by  fences,  when 444 

may  be  impounded,  when 444 

PERAMBULATION, 

effect  of,  in  locating  land 246,  247 

evidence  in  boundary  cases ~°^ 

POND, 

boundary  of  land  on 70-73,  161,  162,  171 

POSSESSION, 

when  evidence  in  boundary  cases 287,  335 

evidence  of  title  to  land,  when 302,  315 

PRACTICAL  LOCATION, 

effect  of  as  evidence -^^ 

how  established 28S-294 

PRESCRIPTION, 

when  binding  on  the  public 35 

obligation  by  to  maintain  fences,  when 345-347 

how  destroyed 348-350 

right  to  drip  of  eaves  acquired  by,  when 356 

wmdow  lights  acquired  by,  when 521-525,  532,  539 

conditions  of 523 

how  lost 556-559 

PRESUMPTION, 

when  indulged  as  against  the  public 35-37 

of  grant  of  land,  when 36 

respecting  boundary  of  land  on  navigable  waters 40  47 

unnavigable  waters 53,  61,  218 

ponds 72 

roads  and  streets 103-1 14 

private  way 112-114 

in  respect  to  waste  lands 114-116 

party  walls 117.  118 

true  boundary  of  land 124,  127,  132,  134,  135 

States 234 

PRIVATE  WAY, 

rules  applicable  to 112-114 

passengers  may  not  go  outside  of 117 


590  ALPHABETICAL  INDEX. 

PROPERTY,  PAGE. 

in  land  bounding  sea-shore 31,    34 

islands 49,  50,  73-80 

the  soil  under  rivers,  31,  32,  39,  40,  42,  49-63,  100,  106,  108,  109,  111 

in  roads  and  streets 103-11 1 

party  walls 117,  118 

boundary  trees 318-328 

PROSPECT, 

rule  in  respect  to  right  of 517,  518 

action  will  not  lie  for  obstructing,  when 553,  553 

PUBLIC  DOCUMENTS, 

when  evidence  in  boundary  cases 307-310 

PUBLIC  REPUTATION, 

when  evidence  in  boundary  cases 297-301,  305-309 

PUNCTUATION, 

resort  to  in  construing  grants 130 

PURPRESTURE, 

defined,  and  rules  in  respect  to 95,    96 


E. 

RAILROADS, 

obligation  of  owners  to  fence  in  New  York 364,  375,  380-389 

Vide  Maine,  New  Hampshire,  etc. 

RELEASE, 

right  to  window  lights  lost  by,  when 556,  558 

RELICTION, 

defined 91,  92 

rules  in  respect  to 91-94 

of  the  civil  law  in  respect  to 92,  93 

REMEDY, 

in  case  of  disputed  boundary 244-252,  254-269,  273 

obstructing  window  lights 535,  553,  553 

REPUTATION, 

when  evidence  in  boundary  cases 297-306,  308,  309 

verdicts  evidence  of,  when  297-301,  305-309 

ancient  surveys  evidence  of,  when  ; 313,  314 

RESERVATION, 

effect  of,  in  grant  of  land 176 

REVERSIONER, 

may  have  action  for  obstructing  window  lights,  when 561 

RHODE  ISLAND, 

statutes  respecting  fences  in 423-425 

what  are  lawful  fences  in 423 


ALPITABETICAL   INDEX.  591 

RHODE  ISLAND— Continued.  page. 

partition  fences  in,  maintenance  of 423,  424 

must  be  placed  on  true  line 423 

agreements  in  respect  to 424 

may  be  omitted,  when 424 

disputes  respecting,  how  settled 424,  425 

fence-viewers  in,  and  their  powers 424,  425 

towns  required  to  fence  roads  in,  when 425 

RIDGE  OF  HILLS, 

boundary  of  land  on 151,  184 

RIGHTS, 

the  word  explained  as  used  in  land  grants 173,  174 

RIVER, 

when    navigable,   property  in    the  soil    under,     31,     32,    39,     40,    42, 

44-4G,  48,  49-63,  100,   106 

deemed  navigable,  when 43,  44,  45-47,  58-55 

public,  when 44,  53-57 

when  navigable,  jurisdiction  over 44,  45,  53,  57 

boundaryof  landon....  45,  48-63,  78,  92,  93,  169,  224 

different  classes  of 44,  45,  52,  58 

when  unnavigable,  boundary  of  land  on,  49-63,  65,  106,   108,  109,  111, 

146-148,  153,  154,  159,  160,  169,  224 

navigable,  property  in  the  soil  under 52-63  146-148 

what  deemed  the  bank  of 55 

islands  in,  property  in 73-80 

thread  of,  how  ascertained 77 

when  unnavigable,  protection  of  banks  of 98-100 

boundary  of  grant 1 89 

State,  rules  in  respect  to 234,  237 


ROAD, 
ROOTS, 


Tide  Highway. 
Vide  Trees. 


s. 

SEA, 

soil  under,  property  in  and  control  of 32,    33,     39 

SEA-SHORE, 

boundary  of  lands  on 31,  34,67,217,219,  221,  222 

property  in 31-33,  39,  42,  43 

right  in,  how  transferred 32,  35-37,  39 

defined 33,  34 

walls  upon,  when  allowed 95-100 

boundary  of  State  by 234 

SEA-WALL, 

when  allowed  on  the  sea-shore 95-100 

rules  in  respect  to 95-102 


592  ALPHAR^rjf'.iL   INDEX. 

SHORE,  TAOE. 

defined 33,  34,     68 

boundary  of 32,  35-37,     39 

property  in 31-33,  39,  41,  42,  67,  68,  221 

different  kinds  of 67 

SKY  AREA, 

how  estimated  in  cp^e?  of  p-'-O'low  lights 567 

SOIL, 

under  the  sea,  property  i/)  32,  33,     39 

certain  other  waters 32,  35,     36 

presumptions  in  respect  to  property  in,  under  rivers..  37,  38,  50,  51,     73 
property  in,  id  roatis  and  streets 103-111 

f«OTjTH  CAROLINA, 

statutes  respecting  fences  in 489,  4;  0 

what,  aie  legal  fences  in 489 

cultivated  fields  in,  to  he  fenced,  when 489,  490 

tiespassing  animals  in,  may  be  distrained,  when 489 

actions  for 490 

expense  of  partition  fences  in,  recoverable  when 490 

liability  of  railway  companies  in 490 

♦IaKES, 

effect  of,  as  monuments 213 

STATES, 

may  control  navigable  waters  in,  when 33 

rules  respecting  boundary  of 233-244 

judicial  notice  of. 234-236 

boundary  of,  on  the  Mississippi  river 242,  243 

how  settled 243,  244 

STATUTES, 

Vide  Fences,  New  York,  etc. 

STREAMS, 

when  unnavigable,  boundary  of  lands  on 49-63,  65,  197,  217 

embankments  and  dams  on 98-100 

Vide  River. 

STREETS, 

boundary  of  land  on 103-111,  125-127,  134,  136,  142,  144,  145 

149-151,  154,  J55,  169,  172 

presumptions  as  to  soil  of 103-111,  113,  125-127 

designation  of,  in  deed 143,  144 

rule  as  to  boundary  on,  same  in  country  and  city 150,  151 

effect  of  naming  of,  in  grant 1'^^ 

referred  to  as  a  monument,  effect  of 160,  161 

Vide  IIionwAY. 

SURVEY, 

competent  evidence  in  boundary  cases 283,  286,  312-315,  334 


ALPHABETICAL    INDEX.  593 

T. 

TENANT,  ^^„ 

must  keep  boundaries  of  demised  lands  distinct,  when   ....  361-263,  267 

proceedings  in  equity  against  lor  rent 267,  28(5 

liability  of,  respecting  fences 504-511 

must  niainlain  fences,  when 505    507    51U 

property  of,  in  trees,  hedges,  etc 506 

excused  from  repairing  fences,  when ,'507 

liable  for  waste,  when 507    5O8 

right  of,  as  to  estovers. . ,  ^  5O7    508 

to  use  timber  to  repair  fences 507-51U 

assignee  of,  to  maintain  fences,  when 511 

may  have  renewal  of  lease,  when    512 

TENANTS  IN  COMMON, 

may  have  partition,  when 271    272   278 

rights  of,  in  trees,  hedges,  etc 320-324 

partition  wall 322 

boundary  line 333 

TEJNNESSEE, 

statutes  re.tpecting  fences  in 498-500 

fences  required  in,  when 49g 

consequences  of  defective  fences  in 498  499 

partition  fences  in,  maintenance  of 499  500 

penalty  for  damaging  fences  in 499 

fences  in,  may  not  be  removed,  when 499  500 

liability  of  railway  companies  in 500 

TEXAS, 

statutes  respecting  fences  in g03    504 

TIDE- WATER, 

Vide  River. 

TITLE, 

to  laud  under  navigable  rivers 81-33    39   40 

unnavigable  rivers 52-63 

Vide  Sea-shore,  Highway. 

TOWN, 

rules  in  respect  to  boundary  of 233 

judicial  notice  of 235   236 

disputed  boundaries  of,  how  settled 246,  252    253 

power  of,  respecting  fences  in 371-380 

TREES, 

when  marked,  evidence  in  boundary  cases 28^ 

on  division  lines,  property  in 318-328 

rule  of  the  civil  law  in  respect  to 319,  328 

French  Code  in  respect  to 319,  320,  328 

severing  of,  action  for 35g 

76 


594  ALPHABETICAL   INDE^. 

U. 

UNITY  OF  OWNERSHIP,  paob. 

extinguishes  obligation  respecting  fences,  when 348-350 

right  to  window  lights,  when 556,  558,  559 

UNITY  OF  POSSESSION, 

destroys  right  to  window  lights,  when 556,  558,  559 

USAGE, 

aid  of,  in  construing  a  grant 122,  123,  294-296 

USEK, 

may  be  proved  to  aid  in  construing  a  grant,  when 180 

V. 

VERDICT, 

evidence  of,  in  boundary  cases 307-309 

VERMONT, 

statutes  respecting  fences  in 410-415 

what  are  lawful  fences  in 410 

highway  fences  need  not  be  maintained  in 411 

division  fences  in,  muiutenance  of 411,  412 

dispensed  with,  when 411 

consequences  of  defect  of 411,  413,  414 

locating  of 412 

how  divided  between  proprietors 412 

the  fence-viewers  in 412,  414 

railway  fences  in 412 

fences  need  not  be  built  in,  when 412 

damages  where  no  fence  exists  in 418 

impounding  cattle  in    415 

meaning  of  ' '  inclosure  "  in 415 

VIEW, 

rule  in  respect  to  right  of 517,  518 

no  action  for  obstructing,  when 552,  553 

when  proper  in  cases  of  obstruction  to  window  lights . .  567,  568 

VIRGINIA, 

statutes  respecting  fences  in 446,  447 

w. 

WALL, 

on  the  sea,  rules  in  respect  to 95,  102 

when  allowed 95,  100 

on  unnavigable  streams,  rules  in  respect  to 98,  102 

between  adjoining  owners  of  land,  boundary  on 117,  118,  140,  189 

vV^ASTE  LANDS, 

by  side  of  road,  property  in 114-116 

right  to,  by  prescription,  when 114 

origin  of,  in  England 116 


ALFJiA2iM:TIVAL    IX^DEX.  595 

WATER-COURSE,  pa«b. 

boundary  of  land  on 63,  125,  133-135,  161 

rule  same  as  to  artificial  as  natural 63,     64 

Vide  RiVEK,  Waters. 

WATERS, 

boundary  of  land  on 31,  33-48 

soil  under,  property  in 31,  32,  39,  40,  42,  44,  46,  48-63 

what  are  deemed  navigable 35,  43-47,  53-55 

Vide  Sea,  River,  Lake,  Pond. 

WEST  VIRGINIA, 

statutes  respecting  fences  in 447,  448 

WHARF, 

grant  of,  what  passes  by 175 

WILL, 

rules  of  construction  of 174 

WINDOW  LIGHTS, 

importance  and  nature  of  the  right  to 515 

right  to,  a  continuous  easement 516 

different  from  tliat  of  prospect  or  view 517,  518 

in  respect  to  prospect  or  view 518,  519 

analagous  to  right  to  water 519 

in  city  and  country  the  same 520,  554 

how  acquired 521-531 

acquired  by  occupancy,  when,  521-525,  532,  534,  542,  543,  546 

557 
express    agreement,     when,    525-527,  532,  535,  541 

54'^ 

implied  agreement,  when 527-531,  550 

the  American  doctrine  in  respect  to 531-551 

English  rule  in  respect  to,  not  recognized  in  the  United  States,  when,  533 

534,  536,  540,  542,  543,  545,  549 

remedy  in  cases  of  obstruction  of 535,  552-554,  559,-566 

English  rule  in  respect  to,  when  recognized  in  the  United  States,  539,  540 

545,  547,  548,  550 

what  is  an  obstruction  of 541 ,  552,  564 

no  implied  agreement  for  right  to,  when 544,  547-550 

prescriptive  right  for,  when 545,  546,  550 

extent  of  the  right  to 552-556 

evidence  in  cases  of  obstruction  ot 553,  554,  566-56H 

right  to,  how  lost 556-559 

by  abandonment 556-558 

express  release 556-558 

unity  of  possession 556,  558,  559 

right  to,  under  special  covenants 559,  560 

practice  in  cases  of  obstruction  of 568 


596  ALPHABETICAL    INDEX. 

WISCONSIN,  p^^B 

Statutes  respecting  fences  in 459-^65 

what  are  legal  fences  in 559^  563 

partition  fences  in,  maintenance  of 459-461 ,  464 

powers  of  fence-viewers  in   460-464 

value  of  fence  in,  may  be  recovered,  when 460-464 

controversies  respecting  fences  in,  how  settled 460,  461 

highways  in,  not  to  be  depastured,  when 460 

partition  fences  in,  how  divided  between  proprietors 460-462 

may  be  dispensed  with,  when 462,  46:-) 

private  roads  in,  to  be  fenced,  when 463 

railroads  in,  to  be  fenced,  when 463-465 

ordinary  fences  in  the  country  only  contemplated  by  statute  of 463 

fences  in,  deemed  fixtures,  when 463 

WOLF  ISLAND, 

belongs  to  Kentucky 242,  243 

WORDS, 

how  interpreted  in  land  grants,  27,  121,  123,  124,  128,  168,  214,  215,  220 

taken  most  strongly  against  grantor,  when 30,  120 

where  some  yield  to  others  in  deeds 131 

may  be  transposed  in  a  deed,  when 131 

effect  of,   "  more  or  less,"  in  deeds 152,  180,  181,  209 

force  of,  in  land  grants 176,  201,  202 

WRECK, 

property  in , 37 

WRITTEN  INSTRUMENT, 

rules  for  construing  of 118-138,  190,  200-202,  205,  222,  224,  282.  283 

Vide  Construction. 


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